2014 (5) TMI 305

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.... 2008, relating to the assessment year 2005-2006, raising the following substantial question of law: "Whether on the facts and in the circumstances of the case, the Honourable Tribunal was right in upholding the levy of penalty under Section 12(3)(b) of the TNGST Act, 1959 without considering the proviso to Section 12(3) of the TNGST Act is correct in law?" 2. The only question raised by the assessee is as to whether the levy of penalty under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 was justifiable particularly when there was no suppression pointed out by the Revenue that the claim of the assessee related only to concessional rate of tax. 3. The assessee herein, is a manufacturer of Industrial Noise Control Ma....

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....e assessment on the assessee was as per the details available in the books of accounts, the question of levy of penalty was unsustainable. Thus when the assessment is based on the turnover disclosed in books of accounts, the Sales Tax Appellate Tribunal failed to take note of the Explanation to Section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 introduced in Act 22 of 2002 effective from 01.07.2002. 5. We have heard Mr.Thiyagarajan, learned Senior counsel for the petitioner and Mr.A.R.Jayaprathap, learned Government Advocate (Taxes) for the respondent. 6. As rightly submitted by learned Senior Counsel for the assessee, the only issue before the Authorities was as to whether the turnover in question attracted concessional r....

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....e than five per cent but not more than fifteen per cent; (ii)seventy five percent of the difference of the tax assessed and the tax paid as per return, if the tax paid as per the return falls short of the tax assessed on final assessment by more than fifteen per cent but not more than twenty five per cent; (iii) one hundred percent of the difference of the tax assessed and the tax paid as per return, if the tax paid as per the return falls short of the tax assessed on final assessment by more than twenty five per cent but not more than fifty per cent; (iv) one hundred and twenty five percent of the difference of the tax assessed and the tax paid as per the return, if the tax paid as per the return falls short of the tax assessed on....

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....e Assessing Authority with reference to any specific concealment of any turnover from the accounts; (iii) Any turnover on which tax is paid at the concessional rate subject to the condition of furnishing any declaration but where such declaration could not be furnished at the time of assessment." 8. Thus when the turnover assessed under the assessment order is drawn from the books of accounts itself, and there being no reference to any specific concealment of the turnover in the accounts, the question of invoking Section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 would not arise. The Explanation to Section 12(3)(b) of the Act specifies the turnover which merited to be excluded for the purpose of levy of penalty, one such b....