TaxTMI 
TaxTMI 
1983 (7) TMI 294
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....t the revised return should be for each quarter and it should be accompanied by explanatory note, was duly cured by its admission and the revised return was considered for the purpose of assessment, it was still open to the Tribunal to hold that the assessment has not been made on the basis of the revised return? (3) Whether under the facts and circumstances of the case, imposition of penalty under section 43 of the State Act in respect of the original return would be justified in the assessment for each year? (4) Whether under the facts and circumstances of the case penalty under section 17(3) of the State Act was attracted in respect of the revised return in the assessment for each year? (5) Whether in view of the fact that proceedings for penalty under section 43(1) of the State Act were initiated by the Tribunal and notice was issued by it, the Tribunal was justified in remanding the case to the Deputy Commissioner for passing order under that section? 3. Shorn of details which are not necessary for the disposal of these references, the broad facts of the case are as follows: The assessee is a partnership firm engaged in the business of cotton. The ....
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....ces to the assessee to show cause why the penalty imposed by the assessing authority under section 43 of the State Act should not be restored. The assessee showed cause. The Tribunal rejected the contention of the assessee that in the circumstances of the case penalty under section 43 of the State Act could not be imposed by the Tribunal in second appeal. On merits the Tribunal held that the assessee had deliberately furnished inaccurate particulars of sales made by it in the original returns and that the revised returns were not valid because they did not fulfil the mandatory requirements of rule 19(2) of the Rules and the assessment was not based on the returns but on the account books of the assessee. The Tribunal remitted the cases to the Deputy Commissioner of Sales Tax for fresh disposal of the appeals preferred by the assessee and for determining whether the penalty imposed on the assessee by the assessing authority was reasonable and justified. 8.. The assessee submitted applications to the Tribunal for referring questions of law arising out of the orders of the Tribunal and it is at the instance of the assessee that the aforesaid questions of law have been referred by t....
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....d the power to initiate penalty proceedings if the conditions specified in section 43 of the State Act existed. 12.. In our opinion, the contention raised by the learned counsel for the assessee is well-founded. The penalty imposed by the assessing authority under section 43 of the Act was set aside by the first appellate authority. The said orders became final under section 38(6) of the State Act which reads as follows: "38. (6) In the case of an order passed in first appeal under this section against which an application for revision is filed to the Commissioner under subsection (1) of section 39, the order passed in revision shall be final and in the case of every other order passed in first appeal or second appeal under this section such order shall, subject to the provisions of this section, section 39 or section 44, as the case may be, be final," The Department had no right to prefer appeals against the orders passed by the first appellate authority setting aside the penalty imposed by the assessing authority under section 43 of the State Act. The assessee preferred appeals against the orders of the first appellate authority in so far as they related to the impositio....
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....nal the order of the first appellate authority does not become final and finality is attached to the order passed in second appeal subject to the provisions of section 44 of the State Act which provides for referring questions of law for the opinion of this Court. 14.. Section 38(6), as stated above, is not made subject to the provisions of section 43 of the State Act and therefore, even if the language of that section is wide, it does not confer power on the Tribunal to reopen a matter which has become final under section 38(6) of the State Act. In the present case as stated above the orders passed by the first appellate authority setting aside the penalty under section 43 of the State Act became final and the appeals preferred by the assessee before the Tribunal were restricted to that part of the orders of the first appellate authority which related to the imposition of penalty by that authority under section 17(3) of the State Act. In the circumstances the Tribunal had no power to initiate proceedings for imposition of penalty under section 43(1) of the Act in the course of second appeals preferred by the assessee against the imposition of the penalty by the first appellate ....