DOVETON CAFE Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) FOR the assessment year 1972-73 the petitioner returned a taxable turnover of Rs. 2, 50, 868. The Joint Commercial Tax Officer, Purasawalkam, determined the taxable turnover at Rs. 2, 60, 868 by an assessment order dated 13th July, 1973. The place of business of the dealer was inspected on 6th August, 1973, by the officers of the intelligence wing. They recovered 7 slips from the business premises. The managing partner, at the time of inspection, admitted in his statement of that date that all the slips related to the business of the dealer. After issuing a notice under section 16 and after hearing the dealer, the Joint Commercial Tax Officer brought to tax a further turnover of Rs. 7, 05, 703 as suppressed turnover. He also levied a penalty of Rs. 38, 903 being 1 1/2 times the tax due. The dealer filed an appeal before the Appellate Assistant Commissioner and contended that none of the slips recovered related to his business, that they were neither in the handwriting of any of the partners nor employees of the dealer and that there is no intrinsic evidence to connect the slips with the dealer's business. The Appellate Assistant Commissioner noted that slip No. 1 showed the trading results of the business for a whole year, that there is a reference to purchases and sales and that, in view of the statement of the managing partner at the time of inspection, it should be held that these slips related to the business of the dealer. In that view, he came to the conclusion that the assessing authority was justified in coming to the conclusion that the sale amount of Rs. 9, 56, 569 as noted in the slips, related to the appellant's business in 1972-73 and the addition to the turnover was correct. All the same, the Appellate Assistant Commissioner held that there was no specific finding that there was a wilful non-disclosure of the transaction found in the slips and that, therefore, no penalty could he levied. Accordingly, he cancelled the penalty. The dealer preferred an appeal before the Tribunal questioning the addition on the ground of escaped turnover. The revenue filed T.M.P. No. 2 of 1977 before the Tribunal praying to restore the levy of penalty made by the assessing officer. The Tribunal, after a reappraisal of the entire material available, came to the conclusion that the slips recovered from the dealer's premises did relate to the business carried on by the dealer and that the total sales during the year were Rs. 9, 56, 568.73 and that, therefore, the enhancement of the turnover was right and does not call for any interference. The Tribunal also held that having regard to the turnover originally returned and the recovery of the slips subsequently, which showed a larger turnover, there was a wilful suppression attracting the levy of penalty. He also held that as there was a large scale suppression of turnover, the levy of penalty was called for and was justified. On that ground the Tribunal entertained the petition filed by the revenue for restoration of the penalty, and with an observation that the facts and circumstances did not warrant such large penalty of Rs. 38, 903, reduced the penalty to Rs. 1, 500. It is against this order of the Tribunal that the dealer has filed this revision petition.In this petition the dealer has questioned both the redetermination of the turnover by the addition of Rs. 7, 05, 703 as also the levy of penalty of Rs. 1, 500. Under section 36(3) of the Tamil Nadu General Sales Tax Act of 1959 in disposing of an appeal the Tribunal may, after giving the appellant a reasonable opportunity of being heard, enhance the assessment or penalty or both. Purporting to invoke this power, the revenue filed an application for enhancement of the penalty. This Court has held in State of Tamil Nadu v. Jakthi Veliyeetakam that the general power conferred on the Tribunal for enhancing the penalty can be invoked only if there was something to be enhanced.

(2.) IF the Appellate Assistant Commissioner had set aside the order of penalty in toto, the Tribunal will have no jurisdiction to entertain any such petition for enhancement as, in such a case, there was no penalty that could be enhanced. Enhancing the penalty already imposed is different from restoring the penalty which was imposed by the original authority but set aside by the Appellate Assistant Commissioner since the subject-matter of the appeal before the Tribunal was the order of the appellate authority and not that of the original authority. Consequently, therefore, the petition T.M.P. No. 2 of 1977 before the Tribunal was not maintainable and the order of the Tribunal in so far as it levied Rs. 1, 500 as penalty was without jurisdiction and is liable to be set aside and that portion of the order is accordingly set aside.

(3.) IN that view it was held that the service of meals to visitors in the restaurant of the appellant therein was not taxable under the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi, and this is so whether a charge is imposed for the meal as a whole or according to the dishes separately ordered.