TMI Blog2022 (11) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... an admitted position that none of the assessment orders or, for the matter, the show cause notices, reveal any application of mind to the aspect of wilful suppression. The officer merely proceeds on the fact that there was a difference in turnover between the books of accounts and the monthly returns and this, according to him, justifies the invocation of Section 27(3). An additional factor in this matter is that the petitioner has admittedly remitted the difference in tax along with interest even at the time of inspection. This aspect of the matter is not disputed by the learned Government Advocate. Bearing in mind the conspectus of facts and available precedents, the conclusion arrived at by the appellate authority, that the impositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. After detailing the allegations relating to escapement of tax, the authority concludes, also proposing to impose penalty under Section 27(3) of the Tamilnadu Value Added Tax Act (in short 'Act') indicating that the same may be levied . 4. It appears evident to me that the authority had proceeded solely on the basis of the proposals by the enforcement officials that included a proposal to levy penalty as well. To this end, the show cause notice does not satisfy the ingredients of Section 27(3) of the Act which states that the assessing authority must be satisfied that the escape from the assessment is due to wilful nondisclosure of assessable turnover by the dealer . 5. The satisfaction of the officer is thus not conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Full Bench had looked into this very issue and had concluded, after noticing earlier decisions of this Court in Madras Metal Works V. State of Madras (31 STC 566), Rajam Textiles V. State of Tamil Nadu (39 STC 124), A.V.Meiyappan V. Commissioner of Commercial Taxes (20 STC 115) and Ponnusamy Asari V. State of Tamil Nadu (T.C.Nos.451 to 455 of 1969) in favour of the assessee, that such imposition was not automatic. 9. All relevant circumstances arising in a case, the Full Bench said, would have to be carefully scrutinised and the levy of penalty must be considered on the basis of the judicial determination of the question as to whether grounds exist so as to justify such imposition. 10. The mere fact that the assessment was made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely proceeds on the fact that there was a difference in turnover between the books of accounts and the monthly returns and this, according to him, justifies the invocation of Section 27(3). 15. An additional factor in this matter is that the petitioner has admittedly remitted the difference in tax along with interest even at the time of inspection. This aspect of the matter is not disputed by the learned Government Advocate. Bearing in mind the conspectus of facts and available precedents, I am of the considered view that the conclusion arrived at by the appellate authority, that the imposition of penalty under Section 27(3) is automatic, is erroneous in law. The appellate order, to this extent, is set aside. 16. These Writ Petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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