2009 (4) TMI 872 - HC - VAT and Sales Tax

Court Upholds Tribunal Decision on Penalty Levy, Dismissing Revision Due to Lack of Evidence

The court upheld the Tribunal's decision on the levy of penalty under Section 22(2) of the Tamil Nadu General Sales Tax Act, 1959, dismissing the revision ... Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in upholding the levy of penalty of ₹ 17,108 under section 22(2) of the Tamil Nadu General Sales Tax Act, 1959? Held that:- As per the records, it is manifest that the appellant collected excess sum of ₹ 11,345.57 towards tax, which is over and above the permissible limit. On a thorough perusal of the records, it is evident that the Tribunal has recorded a finding that the credit notes were created for the purpose of the case and on after-thought. Even the total amount as per the credit notes was only for ₹ 6,516 and for the remaining amount there was no credit note. The Tribunal has recorded a finding that the credit notes produced at the appellate stage were not genuine, but were created for the purpose of avoiding penalty. Before us nothing has been made out to repudiate that factual finding. The assessee has not produced any supporting materials from the ultimate consumers, who are stated to have received the excess payment of tax. In the absence of any such materials, we do not find any irregularity in the order of the Tribunal. Issues Involved:1. Levy of penalty under section 22(2) of the Tamil Nadu General Sales Tax Act, 1959.2. Confirmation of penalty under section 12(3)(b)(ii) and (iii) of the Act by the Tribunal.3. Validity of credit notes produced by the assessee.4. Contention regarding delay in repayment of excess tax.5. Disallowance of a sum and confirmation of the entire penalty by the Tribunal.Analysis:1. Levy of Penalty under Section 22(2): The revision challenged the order confirming the levy of penalty under section 22(2) of the Act. The appellant admitted collecting excess tax, contending that it was returned through credit notes. However, the Tribunal found the credit notes to be not genuine, created after the fact to avoid penalty. The court observed that the appellant failed to provide evidence supporting the repayment of excess tax, leading to the dismissal of the revision.2. Confirmation of Penalty under Section 12(3)(b)(ii) and (iii): The Tribunal ruled in favor of the assessee, stating they were not liable to pay penalty under section 12(3)(b)(ii) and (iii) of the Act. This decision was not challenged in the revision, indicating acceptance of the Tribunal's findings on this issue.3. Validity of Credit Notes: The appellant produced credit notes to justify the repayment of excess tax. However, the Tribunal deemed these credit notes as not genuine, created to avoid penalty. The court upheld this finding, emphasizing the lack of evidence supporting the authenticity of the credit notes presented by the appellant.4. Delay in Repayment of Excess Tax: The appellant failed to explain the delay in repaying the excess tax, particularly regarding a specific amount covered by credit notes. The court noted the absence of supporting materials from consumers who allegedly received the excess payment, further weakening the appellant's case.5. Disallowance of a Sum and Confirmation of Entire Penalty: The appellant contested the disallowance of a sum and argued that the Tribunal confirmed the entire penalty, including the amount remanded for verification. The court referred to a precedent emphasizing that once an order is appealed, the entire order is subject to scrutiny by the Tribunal. Consequently, the court dismissed the revision, finding no merit in the appellant's contentions.In conclusion, the court upheld the Tribunal's decision on the levy of penalty under section 22(2) while dismissing the revision due to the lack of evidence supporting the appellant's claims regarding the repayment of excess tax and the authenticity of credit notes.