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Judgment
Chitra Venkataraman, J.—This Tax Case Revision, filed at the instance of the assessee, was admitted by this Court on the following
substantial question of law:
Whether the Tribunal is well in the facts and circumstances of the case in not considering the fact that the levy of penalty u/s 12(3)(c) of the Act is
possible only when the assessment is made u/s 12(2) of the Act and in the present case, the assessment is made u/s 12(1) of the Act and hence the
levy of penalty u/s 12(3)(c) of the Act is beyond jurisdiction?
The assessment year in this case relates to the assessment year 1996-97. It is seen from the original order of assessment made on 12.11.1997 that
on the belated filing of the annual return in Form A1 on 15.7.1997, which was due on 2.5.1997, penalty u/s 12(3)(c) of the Tamil Nadu General
Sales Tax Act was levied at Rs. 5,319/- . Admittedly, the order of assessment levying penalty was not in any manner challenged before the
Appellate Authority and the same had attained finality. Subsequent thereto, a notice of revision was made on 19.11.1998 on the ground that the
petitioner had not submitted the monthly returns and paid the tax due thereon. Considering the fact that the returns were filed only on 17.7.1997
and paid the tax, then penalty for the period from 20.5.1996 to 29.7.1997 was calculated at 2%, thus proposing to levy penalty at Rs. 31,266/- .
The assessee resisted the same by contending that the calculation of number of days was wrong. The tax due as per the return was paid well
before the assessment. In the circumstances, the petitioner sought for dropping of the proceedings. A revised notice was subsequently issued on
24.12.1998 pointing out that in the original notice issued, levy of penalty was worked out from 1.5.1997 itself in the absence of month war
particulars. However, going by the details filed by the assessee, the same was revised, to result in a demand for a penalty to Rs. 11,029/- . After
hearing the assessee, penalty, sought to be levied at Rs. 11,029/- , was confirmed.
Aggrieved by the same, the assessee went on appeal before the Appellate Assistant Commissioner, who deleted the penalty. As against the
deletion of penalty, the State went on appeal before the Sales Tax Appellate Tribunal, which confirmed the order of the Assessing Authority
levying penalty. Aggrieved by the same, the assessee has come before this Court.
Learned counsel appearing for the petitioner pointed out that when the assessment is made based on the books of accounts and the returns filed,
levy of penalty u/s 12(3)(c) of the Tamil Nadu General Sales Tax Act is arbitrary and illegal. He further pointed out that in any event, as the
assessee had not opted for an assessment under Rule 18 to go for monthly returns, the relevant Rule applicable to the assessee''s case is Rule 15.
On the admitted fact that the assessee''s case is governed by Rule 15, if at all any penalty could be levied, the same could be only with reference
to the annual returns and it was already considered by the Assessing Authority in his original order of assessment dated 12.11.1997.
In this regard, this Court directed the learned Additional Government Pleader to find out as to whether the assessee had opted for filing of the
monthly returns. Learned Additional Government Pleader on a perusal of the files pointed out that the assessee had opted for assessment only
under Rule 15 to go for annual return. We have also perused the files. Going by the admitted fact that when the assessee had opted for annual
returns to be filed as prescribed under Rule 15, the number of days delay, hence, has to be calculated as per Rule 15 only. When that being the
case, the delay of 74 days fixed in the original order of assessment dated 12.11.1997 taking the due date as 02.5.1997 and the date of filing as
15.5.1997 is sustainable.
In the circumstances, the proceedings initiated to revise the order of assessment for levy of penalty as though the petitioner had opted for
monthly return under Rule 18 could not be sustained. Taking note of the fact that the assessee had not raised a dispute as regards the levy of
penalty in respect of 74 days delay in filing the annual return, we hold that that the present order levying penalty as though the petitioner had opted
for filing monthly return cannot be sustained. In the circumstances the original order of levying penalty dated 12.11.1997 remains undisturbed. The
revised order in so far as it seeks to levy penalty in respect of monthly returns stands set aside. Accordingly, the order of the Tribunal stands set
aside to that extent. This Tax Case Revision is disposed of accordingly. No costs.