TMI Blog2019 (4) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment under sub-section (2), the assessing authority may also direct the dealer to pay in addition to the tax assessed, a penalty not exceeding double the amount of tax due on the turnover that was not disclosed by the dealer in his return or, in the case of failure to submit a return, double the amount of tax assessed, as the case may be. The proviso uses the expression “may also direct”, which appears to give an opinion that there is a discretion vested with the assessing officer. In the instant case, the assessee was a dealer in petroleum products and admittedly there has been a suppression of taxable turnover. However, the fact remains that the assessee has paid the tax as quantified by the assessing officer, though not in one single shot, but in installments as granted by the department. The imposition of 200% penalty would require a clear finding of the condemnatious conduct of the assessee and that the conduct of the assessee was thoroughly lacking bonafide. In the assessment order, there is a proposal for one and a half or two times penalty for suppression. It is true that the assessee did not give any explanation to the pre-assessment notice - taking note of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore the respondent has no right to get reduction of the penalty amount levied by the Assessing Officer. Further, the learned Presiding Officer has failed to observe that a court of law cannot exercise its discretionary jurisdiction dehorse the statutory law and its discretion must be exercised in terms of the existing Statute. The learned Presiding Officer has also failed to consider that the respondent had collected the tax for the sold petroleum products as an agent of the Government, but failed to remit the entire tax collected by him and the respondent had not disputed the suppression of turnover and as such the reason adduced by the learned Presiding Officer to reduce the penalty amount is totally against the statute. c. The learned Presiding Officer failed to consider that sympathy cannot supplant the assessee's culpability act of dishonest suppression of turnover. 2 . The matter concerns the levy of penalty on the assessee for suppression of taxable turnover under the provisions of the Pondicherry General Sales Tax Act, 1967 for the Assessment Year 2007-08, and Pondicherry Value Added Tax Act for the assessment years 2008-09 and 2009-10. The Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o which such return relates to and shall be accompanied by an application stating the circumstances on which the revised return is filed. The refund will be due only after confirmation by the assessing authority by issue of a notice as may be prescribed. (c)If any amount is due to be paid by a dealer as per revised return, such return may be furnished at any time and will be accepted by the assessing authority, if the return is accompanied by the proof of payment of balance tax as per the revised return and penalty as prescribed under sub-section (4) of section 37 of this Act. 4. In terms of Clause (a) of the Puducherry Value Added Tax Act, the dealer shall not be eligible to file revised return if any action either has been initiated or pending under Section 24 or under Section 30 or under any other Section under the Puducherry Value Added Tax Act. Admittedly, the proceedings were initiated under Section 24(1) of the Act and the pre-assessment notices were issued in June 2006. The assessee, after having suffered the assessment order and agreeing to pay the tax, had filed the revised return. Such revised return is not a return in the eye of law and it is not maintainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Though the assessee received the pre-assessment notices and requested time to submit their objections, which was also granted by the assessing officer, no objections were filed and subsequently, the assessing officer completed the assessment and confirmed the proposal in the preassessment notices. The assessee was successful before the first appellate authority as well as before the tribunal insofar as the tax liability is concerned. The assessee, even before us, does not dispute the tax liability and the entire liability has been cleared. The dispute before us is only with regard to the penalty. The revenue contends that 200% penalty as ordered by the assessing officer should be confirmed. The assessee contends that 100% penalty as reduced by the tribunal itself is excessive and the Court should wipe out the entire penalty, taking into account the fact that the assessee has paid the entire tax. 8. Section 24(3) states that when making any assessment under sub-section (2), the assessing authority may also direct the dealer to pay in addition to the tax assessed, a penalty not exceeding double the amount of tax due on the turnover that was not disclosed by the dealer in his re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the fact remains that the assessee has paid the tax as quantified by the assessing officer, though not in one single shot, but in installments as granted by the department. The imposition of 200% penalty would require a clear finding of the condemnatious conduct of the assessee and that the conduct of the assessee was thoroughly lacking bonafide. In the assessment order, there is a proposal for one and a half or two times penalty for suppression. It is true that the assessee did not give any explanation to the pre-assessment notice. The objections raised by the assessee before the tribunal was identical to the objections raised in the case of Surya Service Station cited supra, which were rejected. However, taking note of the peculiar facts and circumstances of the case, we are of the view that imposition of penalty at 200% was excessive and levy of penalty at 100% would meet the ends of justice. Admittedly, the assessee has paid the entire tax liability in installments as granted by the department along with the tax equal to 2% of such amount for each month or part thereof, after the date specified for its payment in terms of Section 37(4) of the Puducherry Value Added Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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