BALUSWAMI CHETTIAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE assessee in this case is running a metal oiling mill under the name and style of "balu Metal Rolling Mills". He is also dealing in brass vessels and doing business in Angeripalayam, Tirupur. For the assessment year 1969-70 he was finally assessed on total taxable turnover of rs. 13, 51, 129. 40 by the Deputy Commercial Tax Officer (Rural), Tirupur. On 20th July, 1971, the intelligence wing of the sales tax department inspected the assessee's business premises at Angeripalayam and recovered certain account books and slips relating to his business. On a scrutiny of the same with the regular accounts maintained by the assessee, the intelligence wing found that the assessee has suppressed a sales turnover of Rs. 7, 95, 709. 72. This escaped assessment was added to the total taxable turnover originally fixed and the total was arrived at Rs. 21, 46, 839. 12. On this assessee was assessed under section 16 (1) of the Tamil Nadu General Sales Tax Act (hereinafter referred to as the Act) and a penalty of Rs. 17, 821 was levied under section 16 (2) of the act after due notice.

(2.) THE assessee preferred an appeal to the Appellate assistant Commissioner, Pollachi, who by his order dated 17th June, 1976, sustained the suppression to the extent of Rs. 5, 68, 037. 26 but struck down the levy of penalty of Rs. 17, 821 on the ground that the authority has not recorded a finding that there was wilful non-disclosure of assessable turnover. Not satisfied with this order the assessee filed an appeal to the Sales Tax Appellate tribunal (Additional Bench), Coimbatore . THE Tribunal, after perusing the slips in question, found that the assessee had suppressed purchase of raw materials as in slips Nos. 1 to 3 and 8 to 12 and as such the assessing authority was justified in making a revision of the assessment under section 16 (1) of the Act. As regards the correct figure of purchase suppression the Tribunal found that it is Rs. 60, 067. 45. Adding the gross profit of Rs. 54, 010. 05, the taxable turnover was determined at Rs. 41, 14, 077. 50. Adding this with the turnover originally taken for assessment, the tribunal found the taxable turnover as Rs. 17, 65, 207 for the year 1969-70. On this 3 per cent. levy of sales tax was imposed.

(3.) IN State of Tamil Nadu v. Jakthi Veliyeetakam a division Bench of this Court, while dealing with similar facts, observed as follows : "for the word'enhance'to apply, there must be something to be increased. IN this case, since the Appellate Assistant commissioner has set aside the very order of penalty, there was no penalty to be increased. To enhance 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 is the order of the appellate authority only and not the order of the original authority. Consequently, an application for restoration of the penalty in the present case will not come within the scope of section 36 (3) (a) (i) of the Act and, therefore, the Tribunal was right in not restoring the order of penalty though the reasons given by the Tribunal for doing so are different. Hence the tax revision case is dismissed. " *