AI Drafter 
TaxTMI 
TaxTMI 
2019 (4) TMI 116
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....er filed by the respondent, who is the registered dealer on the file of the Commercial Tax Officer-II (Puducherry). In this case, the department shall be referred to as "revenue" and the respondent shall be referred to as "assessee". The revenue has raised the following substantial questions of law for consideration of this court. "a. The learned Presiding Officer, for the purpose of reducing penalty amount without valid/adequate justification had accepted the reasoning of the respondent / assessee that due to incurring of heavy loss in the business due to overheads and competition in business, he finds difficulty to pay the penalty amount as imposed by the assessing officer. b. The Presiding Officer has failed to observe ....
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....suppressed the taxable turnover and the claim for exemption was erroneous. Though the assessee received the preassessment notices, they did not submit any reply. Consequently, the proposal in the notices was confirmed and the assessment orders were passed. After the assessment orders were passed, the assessee has paid the entire tax in instalments. For the assessment year 2007-08, the assessee remitted the tax in seven installments, for the assessment year 2008-09 in fourteen installments and for the assessment year 2009-10, in ten installments. Thereafter, the assessee filed the revised return and sought to reopen the assessment. According to the assessee, this revised return has not been taken into consideration and it has not been ....
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....rnished within three months from the close of the year to which such return relates to and shall be accompanied by an application stating the circumstances on which the revised return is filed. The refund will be due only after confirmation by the assessing authority by issue of a notice as may be prescribed. (c)If any amount is due to be paid by a dealer as per revised return, such return may be furnished at any time and will be accepted by the assessing authority, if the return is accompanied by the proof of payment of balance tax as per the revised return and penalty as prescribed under sub-section (4) of section 37 of this Act." 4. In terms of Clause (a) of the Puducherry Value Added Tax Act, the dealer shall not be eligible....
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....falls in Chapter 4 of the Puducherry Value Added Tax Act, which deals with the assessment of tax in terms of sub-section (1) to Section 24, which provides that every registered dealer shall file the tax return for each period within 15 days after the end of the period in such a manner as may be prescribed. Sub section (2) to Section 24 states that the return submitted by the dealer along with tax due thereon shall be accepted as self assessment. The proviso empowers the assessing officer to exercise either at his discretion or as directed by the Commissioner, any dealer for detailed assessment for a year by scrutiny of accounts and may make best judgement assessment if so required. The power under the proviso has been invoked in the instant....
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....aking into account the fact that the assessee has paid the entire tax. 8. Section 24(3) states that when making any assessment under sub-section (2), the assessing authority may also direct the dealer to pay in addition to the tax assessed, a penalty not exceeding double the amount of tax due on the turnover that was not disclosed by the dealer in his return or, in the case of failure to submit a return, double the amount of tax assessed, as the case may be. The proviso uses the expression "may also direct", which appears to give an opinion that there is a discretion vested with the assessing officer. Mrs.R.Mala, learned Special Government Pleader would contend that the discretion cannot be exercised without taking into consideration of ....
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....ression "may also direct" . In all cases, where the expression "may" is used, it cannot be stated it is discretionary. Similarly, whenever an expression "shall" is used, it may not always mean that is is mandatory. The provisions have to be interpreted considering the nature of the statute, in which such provision has been made and the facts of the case. In the instant case, the assessee was a dealer in petroleum products and admittedly there has been a suppression of taxable turnover. However, the fact remains that the assessee has paid the tax as quantified by the assessing officer, though not in one single shot, but in installments as granted by the department. The imposition of 200% penalty would require a clear finding of the condem....