TaxTMI 
TaxTMI 
2012 (2) TMI 447
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....amil Nadu General Sales Tax Act (in short "the Act") and imposed the penalty under section 22(2)(ii) at 150 per cent of collection made by the assessee on January 23, 1994 on which date, there was a change in the constitution. This order was taken on appeal before the Appellate Assistant Commissioner. Having found that the assessee had collected tax on the date when there was no registration, the Appellate Assistant Commissioner accepted the findings of the assessing officer for imposing penalty under section 22(2). Nevertheless, having regard to the fact that the assessee had paid the taxes so collected, reduced the penalty and re-fixed the same equal to the taxes so collected. By that order, the Appellate Assistant Commissioner modified the order of the assessing officer. Not being satisfied with the said order, the assessee has made further appeal to the Appellate Tribunal. The Tribunal found that, inasmuch as the tax was collected on the date when the registration was not granted, the assessee had to pay penalty in terms of section 22(2); however, on the discretion exercised by the Appellate Assistant Commissioner for directing the assessee to pay the penalty equivalent to the ....
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....he application is made within a period of 30 days. However, in the case of change of business, again, in the event an application is made within 30 days from the date of change of business, as per the very same rule, a certificate of registration should have been granted within 30 days from the date of receipt of the application. For understanding, the relevant rule, i.e., rule 24(8A) is extracted as under: "24. (8A) A certificate or registration issued or deemed to have been issued under sub-rule (8), shall take effect.- (a)(i) in the case of a person (other than a person succeeding to the business or part thereof who has made the application within the prescribed period) from the date of commencement of the business; (ii) in case of a person who has made the application after the prescribed period, from the date on which the application was received by the registering authority; (b) in the case of any person succeeding to the business or part thereof from the date on which he succeeds to the business; (c) in the case of a person liable for compulsory registration and who has made the application within the time prescribed therefor from the date on which he commence....
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....ealer exempt under sub-section (2AA) of section 20, shall be deemed to be a registered dealer. (2) If any person or registered dealer collects any amount by way of tax or purporting to be by way of tax in contravention of the provisions of sub-section (1), whether or not any tax is due from such person or dealer under this Act in respect of the transaction in which he collects such amount, the assessing authority may, after giving such person or dealer a reasonable opportunity of being heard, by order in writing impose upon him by way of penalty a sum which shall be,- (i) where the excess amount has been collected in the bona fide belief that it had to be collected, one hundred per cent of the amount collected; (ii) where the excess amount has been collected wilfully and knowing that it was not due to be collected, one hundred and fifty per cent of the amount collected: Provided that no proceedings under this sub-section shall be commenced after a period of five years from the expiry of the year in which the amount has been collected: Provided further that no prosecution for an offence under subsection (1A) of section 45 shall be instituted in respect of the same fac....
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.... the excess amount by either the registered dealer or unregistered dealer, in the event a registered dealer, by virtue of the change in the constitution, delays in filing the application for registration, the assessing officer is bound to impose penalty in terms of section 22(2). In our opinion, in a given case, if the assessee is able to establish that the application was not filed due to certain reasons acceptable in law, the imposition of penalty is not automatic and the assessing officer is left with the discretion in view of the word employed "may". The assessing officer may, in writing, impose by way of penalty. The proprietorship was changed with effect from January 23, 1994. The assessing officer had noted that the application for registration was made on February 24, 1994, i.e., one day after the expiry of the period of 30 days. Hence, in the absence of application within 30 days, the assessee should be considered to be an unregistered partnership and therefore, whatever the amount collected on January 23, 1994 would be in contravention of section 22(2) of the Act. It is also revealed that after the change in the constitution on January 23, 1994, the assessee had addressed....