2020 (3) TMI 734

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....e penalty imposed on the Assessee under Section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as 'TNGST Act'), with the following observations. "12) It is admitted in this case that the assessment related to 1993-94 prior to the insertion of an Explanation u/s 12(3)(b) of the Tamil Nadu General Sales Tax Act. The assessment was made by the assessing authority, not accepting the turnover reported in the dealier's returns. It is seen further that the appellate Assistant Commissioner had directed to reconsider the assessment made on a major portion of the disputed turnover ie., the assessment made on Rs. 1,25,08,358/- and also that created on a further Rs. 40,05,778/-. The assessment made by the ....

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....ue advantage and use of the revenue otherwise payable to the State and to that extent, deprive the State of the legitimate user of the receipts for its ever so many schemes in public interest and hence the levy contemplated under Section 12(3) has to be viewed at any rate as a just and reasonable restriction only on the fundamental rights secured under Article 19(1)(g) of the Constitution of India. From the mere fact that the levy of penalty has been ordained compulsorily with every class or category of evasion, it cannot be claimed to be unreasonable on that account only. The levy of tax and the incidental levy of penalty being always considered to be an independent power of the State to raise revenue, there is no such fundamental right ....

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.... Given the position, the Appellate Assistant Commissioner ought not to have ordered to delete the penalty. 17) It is therefore for the above reasons, the Appellate Assistant Commissioner's order deleting the impugned penalty of Rs. 14,03,490/- is ordered to be struck down. The Assessing Officer will give effect to this Tribunal's finding and impose penalty on the dealer u/s.12(3)(b) in relation to the modified balance of tax payable, that will be arrived in the order by giving effect to the Appellate Assistant Commissioner's findings in regard to the turnovers in dispute. He will undertake the exercise of refixing the exact quantum of penalty payable by the Assessee and pass orders accordingly. 18) To the above effect, the S....