T SINGARAVELU Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THESE revisions filed by the assessee relate to the assessment years 1981 -82 and 1982 -83. The petitioner Mr. T. Singaravelu is a dealer in tread rubber. For the assessment year 1981 -82, the taxable turnover was determined at Rs. 2, 51, 280 and Rs. 4, 671 respectively by the Assistant Commercial Tax Officer in his order dated July 26, 1982. The assessment was made on the basis of the records secured during the inspection of the place of business of the assessee. The Enforcement Wing, on October 13, 1982, made inspection and reassessment was made on an escaped turnover of Rs. 3, 11, 134 and levied tax of 9 per cent on this entire escaped turnover. Penalty was levied at Rs. 42, 003 calculating at 50 per cent of the tax due on the escaped turnover. Aggrieved, the assessee filed an appeal before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner confirmed the order passed by the assessing officer. The assessee filed a further appeal before the Appellate Tribunal. The Appellate Tribunal determined the escaped turnover as Rs. 1, 55, 567 taxable at 9 per cent. Penalty was fixed at Rs. 7, 000 calculating at 50 per cent of the tax due on the actual suppression sustained by the Tribunal.

(2.) FOR the assessment year 1982 -83, the assessee returned a total and taxable turnover of Rs. 1, 49, 039.95 and Rs. 174 respectively. Basing on the records secured on inspection of the place of business of the assessee, the assessing officer determined the total and taxable turnover at Rs. 12, 11, 967 and Rs. 10, 63, 107 respectively. The assessing officer also levied penalty of Rs. 1, 13, 062 under section12(3) of the Tamil Nadu General Sales Tax Act. Aggrieved, the assessee filed an appeal before the Appellate Assistant Commissioner in respect of the assessment made by the assessing officer as well as the penalty levied by him. However, the Appellate Assistant Commissioner confirmed the order passed by the assessing officer on both these aspects. Thereafter, the assessee filed an appeal before the Appellate Tribunal. The Appellate Tribunal determined the taxable suppression turnover as Rs. 8, 37, 502. The penalty was fixed at 50 per cent of the tax due on the actual suppression of Rs. 8, 37, 502. The penalty was therefore reduced and was re -fixed at Rs. 37, 687.

(3.) LEARNED counsel appearing for the assessee submitted that the Tribunal assumed suppression with reference to the brought forward entries available with the records secured and all such brought forward entries do not commence from April 1, 1982 but on various dates from April 1, 1982. According to the learned counsel for the assessee, since there is no positive evidence to establish that there was actual suppression, levy of penalty under section12(3) of the Act is not sustainable. In the alternative, he has submitted that the quantum of penalty is excessive. On the other hand, the learned Additional Government Pleader for Taxes, while supporting the order passed by the Tribunal in respect of both the assessment years under consideration submitted that since the assessee suppressed the sales turnover, the department is correct in estimating the sales turnover and levying penalty under section12(3) of the Act. The sales turnover was determined on the basis of the materials recovered during inspection of the Enforcement Wing. The assessee has not produced any account books to controvert the estimate made by the assessing authority. It was submitted that in the absence of any plausible evidence on the side of the assessee, it is not possible to contend that the estimate made by the assessing authority and confirmed by the Tribunal, was incorrect. So also, it was submitted that inasmuch as the assessee suppressed the turnover, penalty is exigible in both the assessment orders under consideration.