STATE OF TAMIL NADU Vs. GUHAN TRADERS

JUDGEMENT

(1.) THE department is the petitioner herein. THE assessee who is a dealer in pulses, grams and foodgrains, declared total and taxable turnover of Rs. 96, 82, 250.68 and Rs. 51, 28, 245.09. THE assessing officer determined the total and taxable turnover at Rs. 1, 12, 72.701 and Rs. 73, 44, 261. He also levied a penalty of Rs. 1, 20, 264 under section12(3) of the Tamil Nadu General Sales Tax Act. Aggrieved the assessee filed an appeal before the Appellate Assistant Commissioner and the Appellate Assistant Commissioner remanded the matter to find out about the local or fictitious purchases. However, he deleted the penalty. Aggrieved, the assessee filed an appeal before the Appellate Tribunal. THE assessee was aggrieved with regard to the order of remand passed by the Appellate Assistant Commissioner. However, in the course of the hearing, the learned counsel appearing for the appellant-assessee was not able to place before the Tribunal any evidence or arguments. THErefore, the Tribunal confirmed the order of remand passed by the Appellate Assistant Commissioner.

(2.) THE State filed an enhancement petition against the deletion of penalty of Rs. 1, 20, 264. THE assessee relied upon the decision reported in 1977 (6) CTR 496, 1977 (40) STC 466 (Mad.) (State of Tamil Nadu v. Jakthi Veliyeetakam) wherein it was held that where the penalty is entirely deleted by the Appellate Assistant Commissioner, no enhancement petition is possible. According to the department, the order deleting the penalty is inconsistent with the order of remand. It was pointed out that having chosen to remand the assessment, it was not possible for the Appellate Assistant Commissioner to delete the penalty. THE penalty depended mainly upon the question whether the earlier purchase was fictitious or not. THE Appellate Assistant Commissioner has not gone into question in detail and that is why the Appellate Assistant Commissioner remanded the assessment. THE Appellate Assistant Commissioner has no independent material to delete the penalty. However, the Appellate Tribunal confirmed the order passed by the Appellate Assistant Commissioner and dismissed the enhancement petition filed by the department. As against this order, the Revenue is in revision before this Court.

(3.) WE have heard the rival submissions. The assessee declared a total and taxable turnover of Rs. 96, 82, 250.68 and Rs. 51, 28, 245.09. For the reasons stated in his order, the assessing officer determined the total and taxable turnover at Rs. 1, 12, 72, 701 and Rs. 73, 44, 261. He also levied penalty of Rs. 1, 20, 264 under section12(3) of the Tamil Nadu General Sales Tax Act. The assessing officer, in the course of the order, held that the assessee claimed substantial portion of the turnover as second sales. The alleged purchases were made from three dealers to the value of Rs. 20, 04, 428.38. After adding a profit margin, the second sales claimed was arrived at Rs. 22, 04, 871.22. According to the Revenue the abovesaid three persons did not exist during the relevant time of purchase. For the reasons stated in his order, the Appellate Assistant Commissioner set aside the assessment and remanded the same to the file of the assessing officer with a direction to redo the assessment in accordance with law. The Appellate Assistant Commissioner also deleted the penalty levied by the assessing officer under section12(3) of the Act. The Tribunal confirmed the order of remand made by the Appellate Assistant Commissioner.