2019 (11) TMI 1011

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....h have driven the petitioner to file the present writ petition are as follows: The petitioner is a dealer in granite and marbles and assessee on the file of the respondent. The Enforcement Wing officials inspected the petitioner's place of business on 21.07.2016. The Inspecting officials found that there was excess stock and directed the petitioner to pay the tax amount. Accordingly, the petitioner paid the tax amount of Rs. 1,52,309/- by way of cheque dated 27.07.2016. Thereafter, a notice under Section 27(3) proposing to impose penalty was issued. By letter dated 29.05.2017, the petitioner objected the proposal. It is their specific contention that penalty cannot be levied if the tax amount is paid prior to the assessment notice. H....

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.... by the Enforcement Wing officials on 21.07.2016 and they found some lapse, namely excess stock. Consequently, based on the demand made by the Enforcement Wing officials, admittedly, the petitioner has paid the tax amount of Rs. 1,52,309/- on 27.07.2016. Thereafter, based on the report submitted by the Enforcement Wing officials, the respondent issued a notice on 18.04.2017 proposing to impose penalty at the rate of 150% of the tax due under section 27(3) of the Act. The petitioner filed their objection and however, the impugned order, imposing penalty at the rate of 100%, was passed by the respondent. 8. In my considered view, based on the report submitted by the Inspecting officials, the Assessing Officer ought to have issued a notice ....

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....llowed in 2011(37) VST 592 (Madras) (Rainbow Foundations Ltd. vs. Assistant Commissioner (CT) (FAC) T.Nagar (South) Assessment Circle, Chennai, wherein it is held as follows: 2. Quite apart from that the petitioner has relied on a decision of this Court in The Deputy Commissioner (C.T.) Comibatore V. V.S.R. Ramaswami Chettiar and Bros. reported in 38 STC 382 and stated that there could be no separate or independent order under Section 16(2) of the Act. Consequently, the assessing authority has no jurisdiction to levy penalty by a separate and independent order. However, by order dated July 30, 2009, the respondent confirmed the proposal on the view that Section 12C of the Act was inserted by Act 37 of 2006, consequently, t....

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.....P.No.32777/2015 dated 28.09.2016, the learned single Judge of this Court followed the above decision made in Rainbow Foundation's case and set aside the impugned oder imposing penalty alone. The said order reads as follows: 3. The short issue which falls for consideration in this writ petition is as to whether the impugned order could have been passed by the Assessing Officer imposing penalty by way of a separate order. 4. The learned counsel on either side would fairly state that the issue involved in this writ petition is squarely covered in favour of the dealer, by a decision of this Court reported in [2011] 37 VST 592 [Mad] [Rainbow Foundations Ltd., Vs. Assistant Commissioner [CT] [FAC], T.Nagar [South] Assessmen....