STATE OF TAMIL NADU Vs. K BALASUBRAMANIAN

JUDGEMENT

(1.) THE department is the petitioner herein. THE assessee did not disclose a turnover of Rs. 38, 500 in the A-1 return. A penalty notice was issued by the assessing officer to show cause as to why penalty should not be levied under section12(5) of the Tamil Nadu General Sales Tax Act, 1959. THE assessee filed a letter dated February 11, 1982, stating that the investigation of accounts did not indicate any omission of purchase or sale or any other transaction, and hence the levy of penalty is not justified. However, the assessing officer refused to accept the explanation offered by the assessee, and accordingly, minimum penalty of Rs. 1, 910 being 50 per cent. of the tax due on the turnover not disclosed was levied. On appeal, the Appellate Assistant Commissioner confirmed the penalty levied by the assessing officer. Aggrieved the assessee filed an appeal before the Tribunal and the Sales Tax Appellate Tribunal deleted the penalty levied by the authorities below, since according to the Tribunal, the assessee pointed out the mistake even before the completion of the assessment made by the assessing officer.

(2.) AGGRIEVED by this order, the department has filed this revision before this Court.

(3.) THE fact remains that the assessee failed to disclose the turnover of Rs. 38, 500 in A-1 return. THE assessee explained that the investigation of accounts did not indicate any omission of purchase or sale or any other transaction, and therefore, it was submitted that the levy of penalty is not warranted. Generally if the assessee files a revised return and pays tax on the turnover, which was not disclosed before completing the assessment, the Tribunal used to delete the penalty levied under section12(5) of the Act. But in the present case, there was no evidence on record to show that any revised return was filed or any tax due on the turnover which was not disclosed was paid, before completing the assessment. In such circumstances, the penalty levied by the authorities below, under section12(5) of the Act cannot be said to be not justified. Hence, we set aside the order passed by the Tribunal and restore the penalty levied under section12(5) of the Act. In that view of the matter, this tax case is allowed. No costs.