STATE OF TAMIL NADU Vs. R JEYARAJ

JUDGEMENT

(1.) RAJU, J. The Revenue has filed the above tax revision case against the order of the Tribunal in so far as it set aside the levy of penalty under section12 (3) of the Tamil Nadu General Sales Tax Act, 1959, in respect of the suppression of the turnover of Rs. 30, 062.

(2.) THE assessee is carrying on business in coconut oil and oil cake. In respect of the purchase of copra, the assessee did not disclose properly the turnover which necessitated the best judgment assessment by proceedings dated August 26, 1974. THE respondent-assessee appears to have challenged the assessment in respect of the said turnover and also claimed other reliefs. THE appellate authority, by its order dated November 8, 1974, directed the refixation of the total and taxable turnover of the assessee, which has also been carried out by the assessing officer by proceedings dated december 17, 1974. THEreafter, on account of the fact that penalty under section12 (3) of the Tamil Nadu General Sales Tax Act was omitted to be levied, proceedings were initiated on June 30, 1978, to levy penalty under section12 (3)of the Act [mistakenly referred to in the notice as section 16 (2)] in respect of the suppression of the turnover relating to copra which was the subject-matter of best judgment assessment when orders were passed under section12 of the Act initially. Overruling the objections of the assessee, the assessing authority by proceedings dated September 2, 1978, levied a penalty of rs. 1, 426 under section12 (3) of the Act. An appeal challenging the said levy of penalty failed before the appellate authority. THEreupon, it was taken up further before the Tribunal, and the Tribunal relying upon the decision reported in Kathiresan Yarn Stores v. State of Tamil Nadu 1978 (42) STC 121, 1978 AIR (Mad) 322 (Mad.), set aside the levy of penalty on the ground that it is not in every case of best judgment assessment that levy of penalty automatically followed, and in the absence of cinching evidence of suppression, no penalty can be levied. Aggrieved, the Revenue has filed the above tax revision case.