Penalty under section 8(5) unavailable for non-registration and no-return assessments made under section 8(3).

Penalty under section 8(5) of the Andhra Pradesh Tax on Professions, Trades, Callings and Employments Act, 1987 was held to be unavailable where the assessee was not registered under section 6, had filed no return under section 7, and the assessment was made under section 8(3). Section 8(5) applies only to assessments under section 8(1), where an existing return is found incorrect or incomplete and escaped assessment is linked to wilful non-disclosure or evasion. By contrast, section 8(3) covers failure to register or failure to file any return, and the Act provided no penalty in that situation. The penalty orders were therefore without jurisdiction.

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Issues: Whether penalty under section 8(5) of the Andhra Pradesh Tax on Professions, Trades, Callings and Employments Act, 1987 could be levied when the assessee was neither registered under section 6 nor had filed returns under section 7 and the assessment was made under section 8(3).

Analysis: Section 8(5) authorises penalty only in an assessment made under section 8(1), where the assessing authority finds that escaped assessment resulted from wilful non-disclosure of information or an attempt to evade tax. Section 8(1) applies where a return has been filed and is found to be incorrect or incomplete. By contrast, section 8(3) governs cases where the assessee has failed to register or has failed to submit any return. The Act contains no provision enabling penalty in a section 8(3) assessment. In the absence of legislative provision, the court cannot supply the omission.

Conclusion: Penalty under section 8(5) was not leviable in the facts of the case, and the impugned penalty orders were without jurisdiction.

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