TaxTMI 
TaxTMI 
2021 (3) TMI 1074
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....ctions and it shows no willful suppression? 2. Whether the Learned Presiding Officer failed to consider that the penalty amount was imposed upon the Respondent/Assessee herein as punishment for his act of willful suppression of assessable turnover and to discourage the dishonest act of tax evasion. While so, allowing the Tax Appeal filed by the Respondent and nullifying the penalty amount will result in encouragement of tax evasion and the Tax payers will indulge in similar act of evasion on the pretext that he can be able to avoid penalty burden? 3. Whether the Learned Presiding Officer, in the light of "Balaji Floor and Wall Tiles Vs. State of Tamil Nadu (Tax Case Revision No.5 of 2014)", was right in setting aside the penalty imposed by the Assessing officer in Assessment Order for the year 2006-07 for willful suppression of taxable turnover? and 4. Whether the Learned Presiding Officer, in the light of "The State of Tamil Nadu Vs. Golden Homes Pvt. Ltd. (Tax Case Revision Petition No.24 of 2016)", was right in setting aside the penalty imposed by the Assessing Officer in Assessment Order for the year 2006-07 for willful suppression of taxable turnover....
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....h not by way of single payment, but in installments, which the Department had accepted without objections. Ultimately, the assessment was completed by order dated 14.01.2011 determining the total tax payable at Rs. 35,47,435/- and penalty was also levied at 1½ times in terms of Section 13(3) of the PGST Act read with Section 81 of the PVAT Act. 8. Aggrieved over the same, the assessee preferred appeal before the Appellate Assistant Commissioner (CT), Puducherry. The assessee raised a plea that the purchase details obtained from the HPCL should not have been relied on by the Assessing Authority without allowing the respondent to cross examine the supplier to verify the veracity of the details furnished before making the assessment. 9. With regard to the penalty, the respondent stated that the relevant year, namely 2006-07, was the first year of their business and there was lot of difficulty faced by them and that there was no actual intention to evade payment of tax. The First Appellate Authority considered the submissions made by the respondent and not being convinced, dismissed the appeal by order dated 15.02.2017. 10. Aggrieved by the same, the respondent preferre....
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....ion in the case of Balaji Floor and Wall Tiles would also not be applicable, because in the said case, it was also a case of revision of assessment pursuant to inspection, but the dealer therein had paid the entire tax, which was prior to the issuance of pre-revision notice. Therefore, the two decisions, which were relied on by the respondent, are not applicable and are distinguishable on facts. 16. In the case of Surya Service Station, more or less, an identical issue was considered by the Court and the ground raised by the dealer was rejected. The operative portion of the order reads as follows: "38. Examining the order passed by the first appellate authority, we find that the first appellate authority has also assigned reasons, thought not very cogent but, yet in his understanding, he has assigned reasons, with regard to whey the penalty should be sustained. In fact, the first appellate authority has pointed out that the dealer has signed in every page of Form C declaration and its annexures with details of invoice wise purchase of petroleum products for re-sale in Mahe. Thus, we find that the reasons have been assigned by the first appellate authority. Comi....
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.... we are not convinced with the manner in which the Tribunal had interfered with the order passed by the first appellate authority by reducing the penalty merely, on the ground that the dealer accepted and paid the tax. There can be no concession on this ground and it is a clear case of misplaced sympathy. If the dealer has not paid the correct rate of tax, it is illegal. If the dealer has collected tax and not remitted to the Department is all the more illegal. Therefore, there is no case for exercising any sympathy in such cases more particularly, when the transactions are all financial transactions especially dealing with the petroleum products, which can be handled only by licensed dealers such as the petitioner." 17. As pointed out in the above decision, there cannot be any concession merely because the dealer has paid the tax in installments after issuance of pre-assessment notices and no sympathy can be exercised on the said ground. However, the power available with the Assessing Officer is with regard to the quantum of penalty, which can be imposed on the dealer and Sub-Section (3) of Section 13 of the Act states that a penalty, not exceeding 1½ t....