1981 (11) TMI 166

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....nt from the petitioner's managing partner, and thereafter proceeded to initiate action under section 45(2)(cc) for contravention of section 40(1) of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter called as the Act). The authorities, on the basis of the so-called admission, proceeded to impose a penalty of Rs. 1,000 for each accounting year as if the petitioner had asked for compounding the offence. In these petitions, the first point taken by the learned counsel for the petitioner is that in so far as W.P. No. 5765 is concerned, since section 45(2)(cc) came into effect only on and from 1st December, 1972, it could not be applicable in respect of the assessment year 1971-72. There being no retrospective application, this point ta....

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.... wilful intention to suppress the taxable turnover. This finding is the outcome of the Tribunal being satisfied that the amount involved being not forming part of the earlier assessments made, the books having been maintained for different purposes not connected with the turnover involved under the Sales Tax Act, it has thought it fit to remit the five cases back to the assessing officer for fresh disposal in the light of the findings rendered by it. In so doing, in the same paragraph in the later portion it is stated: "In the instant case the excess found with reference to fertilisers and pesticides in the personal diaries had escaped assessment and the first sales turnover of such excess quantity had to be estimated by best judgment." ....

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.... relevant factor. There is nothing to indicate that, while passing the order, the authorities had comprehended the extent to which the escapement has occasioned and as now made out in the order of the Tribunal. It is in this context the learned counsel for the petitioner refers to Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC) wherein it was held that penalty will not be imposed merely because it is lawful to do so, and before even the discretion is exercised, the concerned authority must take into account all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the prov....