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Judgment
P. Jyothimani, J.—This writ petition has been filed by the assessee challenging the order of the Tamil Nadu Sales Tax Appellate Tribunal dated 20.03.2002 in STA.No. 535 of 1999 relating to the assessment year 1992-93, by which, the Tribunal restored the order of penalty imposed u/s 12(3)(b) of the T.N.G.S.T.Act, which was set aside by the Appellate Assistant Commissioner.
The petitioner, who is a dealer in wheat products, has reported a total taxable turn over of Rs. 18,48,146/- and Rs. 12,36,146/- in the relevant form for the Assessment year 1992-93. On checking of the accounts, the Assessing Officer found that in respect of the amount of Rs. 1,02,049/- sales were covered by ''C'' form and therefore, proposed to levy tax at the rate of 4%. Regarding another amount of Rs. 1,32,769/- , proposed to levy the tax at the rate of 10% on the basis that sales were covered by defective ''C'' form. In respect of another sum of Rs. 10,01,328/- , the Assessing Officer proposed to levy tax at the rate of 10%., since sales were not covered by ''C'' form. Similarly,the Assessing Officer proposed to levy tax at the rate of 10%, in respect of another sum of Rs. 1,53,317/- , since consignment sales proposed as inter-state sales, and also for the amount of Rs. 9,70,000/- since sales of Maida proposed as sales of M.F.I Ltd., Cochin. Ultimately, after the records were produced by the assessee and on scrutiny, the Assessing Officer has imposed tax at the rate of 4% in respect of the amount of Rs. 1,02,049/- sales covered by ''C'' Form, imposed tax at the rate of 10% in respect of the amount of Rs. 17,116/- as sales not covered by ''C'' Form, and also at the rate of 10% in respect of the amount of Rs. 1,53,317/- as the consignment sales treated as inter-state sales as well as for the amount of Rs. 9,70,000/- as the sales of maida to Modern Food Indusries Ltd, Chochin. These assessments were made based on the returns filed by the petitioner. On the basis that the records were not satisfactorily maintained, the penalty of Rs. 1,68,467/- was imposed u/s 9(2) of the Act.
Aggrieved over the said order, the petitioner has filed an appeal before the Appellate Assistant Commissioner, who while confirming the turn over, has set aside the penalty portion alone. Against that order, the assessee filed an appeal before the Tribunal in respect of the turn over and the Revenue also filed an appeal as against the finding given by the Appellate Assistant Commissioner in respect of penalty. The assessee''s appeal was partly allowed while the appeal filed by the revenue was allowed, thereby restored penalty amount. Aggrieved by the said portion of the order regarding the penalty, the assessee has filed the present writ petition.
Even though the Tribunal in the impugned order has stated in one ''word'' that ''suppression'' has been found in the accounts of the dealer, there is absolutely no finding regarding bona fides of the petitioner as required u/s 12(3) of the Act. The relevant portion of the order of the Tribunal reads as follows:
As per Section 12(2) if a filed return is incorrect, incomplete and no return is filed, penalty u/s 12(3) can be levied. The suppression found out in the accounts of the dealer has been confirmed. The turn over as per returns and turn over as per accounts are difference. Hence, the return filed were rejected and best judgment was made. In such circumstances, penalty can be levied. Hence, we set aside the orders of the Appellate Assistant Commissioner and restore the orders of the Assessing Officer. Accordingly, the State Appeal is allowed.
In the case of Appollo Saline Pharmaceuticals (P) Ltd Vs The Commissioner, Tax Officer (FAC) & Others reported in 2002 STC 125 page 505, following an earlier decision, this Court has held that for the purpose of a finding to be given u/s 12(3), the authority has to consider the bona fides of the petitioner. In the present case, on factual aspects, it is not in dispute that the assessee has shown all the entries in the books of accounts and therefore, there is no willful suppression or want of bona fides on the part of the assessee and this aspect has not been considered by the Assessing Officer. Moreover, even in respect of the turn over regarding the amount of Rs. 9,70,000/- , the Tribunal itself has deleted the same holding that the billing charges to the extent of the said amount of Rs. 9,70,000/- were not taxable turn over.
In such circumstances, we are of the view that the Tribunal has not applied the legal mind in proper perspective in restoring the penalty. Accordingly, the impugned order of the Tribunal in this regard stands set aside. The writ petition in respect of the penalty alone stands allowed. However, there shall be no order as to costs.