2012 (1) TMI 142

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....tion of the REP licence when the transaction has not been disclosed in the returns?" 2. The respondent-assessee is engaged in the business of manufacture and exports of hosiery garments. The relevant assessment year is 1992-93. They had reported total and taxable turnover of Rs. 5,74,376 and "nil", respectively. Later accounts were called for and checked by the assessing officer and pre-assessment notice was issued proposing to levy of tax on sale of REP licence and exim scrip. No objection was filed and therefore, the assessing officer confirmed the proposal and finally assessed on total and taxable turnover of Rs. 5,74,376 and Rs. 5,74,376, respectively. Later, the assessing officer passed an order dated March 30, 1998, proposing to levy....

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.... to show it and therefore, it is not a fit case for levying penalty under section 12(5)(iii) of the Act and in support of his contention, he relied on the judgments in the case of P.S. Apparels v. Deputy Commercial Tax Officer, T. Nagar East Assessment Circle, Madras reported in [1994] 94 STC 139 (Mad) and State of Tamil Nadu v. Indian Silk Traders reported in [1994] 94 STC 157 (Mad) [App]; [1992] 1 MTCR 81. Therefore, the order passed by the Tribunal is in confirmity with law and the same has to be confirmed. 5. We heard the learned Special Government Pleader (Taxes) for the petitioner and the learned counsel for the respondent-assessee. The case of the assessee is that they were under the bona fide belief that they are not liable to tax ....

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....oval by the Supreme Court in Vikas Sales Corporation v. Commissioner of Commercial Taxes [1996] 102 STC 106 (SC). 6. However, in P.S. Apparels case [1994] 94 STC 139 (Mad), this court held that though for purposes of levy of penalty under sections 12(3) and 16(2) of the Act, a finding regarding wilful non-disclosure is a necessary ingredient and pre-requisite, it cannot be claimed that the culpability or bona fides of the assessee are totally strange concepts even while considering the levy of penalty under section 12(4) and 12(5) of the Act. This court also referred to a Division Bench judgment of this court in State of Tamil Nadu v. Indian Silk Traders [1994] 94 STC 157 (Mad) [App]; [1992] 1 MTCR 81, holding that though the element of de....