TMI Blog2021 (3) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... , however, we are not inclined to terminate the penalty proceedings permanently but will allow the Assessing Officer to pass a fresh order after hearing the petitioner. Petition disposed off. - WP(C) No.286/2016 - - - Dated:- 1-3-2021 - HON BLE THE CHIEF JUSTICE MR. AKIL KURESHI AND HON BLE JUSTICE MR. S G CHATTOPADHYAY For Petitioner(s) : Mr. T K Deb, Advocate. For Respondent(s) : Mr. A Nandi, Advocate. JUDGMENT (ORAL) (Akil Kureshi, CJ ). Petitioner has challenged an order of assessment dated 22nd March, 2006 passed by the Superintendent of Taxes demanding additional sales tax from the petitioner for the years 2001-2002 to 2004-2005 as also the penalty of the said authority imposed under Section 13 of Tripura Sales Tax Act, 1979 ( TST Act for short). This order was confirmed by the revisional authority by an order dated 23rd December, 2015. [2] Brief facts are as under : The petitioner is a C F Agent and is engaged in sell of cement and other goods for which the petitioner was registered as a dealer under TST and Central Sales Tax Act, 1956 ( CST Act for short). For the years 2001-2002 and 2004-2005 the petitioner had filed his returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced so that the undersigned can be satisfied in respect of damage of such a huge quantity of cement. It is interesting to know that such a huge quantity of cement i.e. 291717 bags so called hard stone were not remained as unsold which were sold @ ₹ 1.50 to ₹ 3.00 per bag. So there is reason to believe that the damage of cement as claimed by the dealer is nothing but a colourful device to conceal the actual sale of cement and to evade tax. Had it not been so the dealer could inform this office prior to sale the 29717 bags of cement @ ₹ 150 to 3.00 per bag instead of ₹ 161.00 to ₹ 210.00 wherein State Govt. Revenue was involved. In view of the above the damage of cement 29117 bags of cement during the year 2001-02 to 2004-05 as claimed by the dealer is not acceptable because it is considered that the dealer sold the 29717 bags of cement as cement not as hard stone. As such 29717 bags of cement in question shall put to tax at the average rate of cement. So reflected by the dealer in the respective year and quantity of bags also will be taken as reflected by the dealer as hard stone in the related year. However, the sale amount of 29717 bags of ceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sizeable time has already passed in producing the necessary records and papers after the getting the notice of assessment and request not to issue separate show-cause notice and date for hearing of penal proceeding which will take further time. So I being agreeable allow him time upto 3 p.m. today on 22.03.2006 to show-cause as to why penal action u/s 13 of the TST Act 1976 shall not be taken. At 3 p.m. today on 22.03.2006 Sri Ranjit Kr. Singh appears but he failed to adduce any satisfactory reason against in position of penalty and admitted the offence as discussed in the above paragraph. So I impose penalty on the dealer @ 25% of the conceal tax amount u/s 13 of said Act. No interest is charge as dealer already deposited more than 90% of tax payable by him and thus complete the assessment as under : .. [5] The petitioner challenged the said order before the Commissioner by filing a revision petition. The revision petition was dismissed by the order dated 23nd December, 2015. The revisional authority after recording the contentions of the petitioner made following observations in order to dismiss the revision petition. . 4. On hearing the Ld. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in breach of principles of natural justice as well as sub-section (2) of Section 13 of the TST Act. [7] On the other hand, learned counsel, Mr. A Nandi appearing for the State as special counsel, opposed the petition contending that against the revisional order of the Commissioner further appeal lies before the Tripura Sales Tax Tribunal. The petitioner without availing the remedy had approached the High Court in the writ petition. Further, the entire issue is factual and no interference is called for. [8] As noted, the petitioner had claimed that sizeable quantity of cement was damaged in railway transportation which the petitioner was forced to sell at a very low price. The Assessing Officer in absence of reliable evidence and documents did not accept this theory and after issuing notice to the petitioner proceeded to pass the order of assessment, relevant portion of which we have reproduced earlier. Perusal of the order of Assessing Officer would show that entire issue is factual in nature and no question of law would arise since the petitioner has not demonstrated any perversity in the factual findings of the Assessing Officer. Even the revisional authority has examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted a serious error. Firstly, contrary to what the revisional authority has recorded in the impugned order, sufficient opportunity of hearing was not granted to the petitioner before imposing penalty by the Assessing Officer. We say so because in the assessment order itself the Assessing Officer has recorded that he was inclined to issue notice for penalty, however, the accountant of the petitioner company stated that issuance of penalty notice would further delay the proceedings. The Assessing Officer, therefore, issued an oral notice to the accountant who was present, thereafter kept the further hearing of the assessments and penalty proceedings and recently orally instituted penalty proceedings in the afternoon on the same day, heard the accountant on penalty as well and concluded that the assessee was deliberately in default. 5. For several reasons, such order of penalty cannot be upheld. Firstly, there was gross violation of principles of natural justice. Even if the accountant did not insist on a written notice for penalty, it is questionable whether the Assessing Officer could dispense with the same. More importantly, the penalty proceedings could not have been complet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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