ATHIPARASAKTHI TRADERS Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) Heard Mr.S.Ramanathan, learned counsel appearing for the appellant and Mr.V.Haribabu, the learned Additional Government Pleader appearing for the respondent.

(2.) This Tax Case Appeal has been filed by the dealer challenging the order passed by the Joint Commissioner exercising his power of suo motu revision. The petitioner is a dealer in Crackers and Fireworks. Based on inspection report dated 24.09.1992, the Assessing Officer assessed the petitioner to tax on the turnover of Rs. 2,09,819/-, being the sales suppression noticed and actual stock difference found i.e, Rs. 2,07,609 + Rs. 2,210/- = Rs. 2,09,819/-, and the petitioner was taxed at 8%. The Assessing Officer added 5 times for probable omission i.e, Rs. 10,49,095/- and levied penalty under Section 12(3)(b) of the Act at 1 = times, apart from levying surcharge and additional Sales Tax. The dealer preferred an appeal before Appellate Assistant Commissioner, who allowed the appeal and set aside the assessment of sales suppression as the same tallied with the sale invoices and set aside the five times estimation. The appellate Authority sustained the difference and 5 times addition of stock difference. The Joint Commissioner, by exercising his suo motu power, allowed the revision by impugned order and restored the assessment made earlier.

(3.) The learned counsel appearing for the petitioner submitted that this Court may not go into the merits of the matter, but would dispose of the Tax Case Revision in the light of the Judgment of the Division Bench of this Court in the case of the State of Tamil Nadu Vs.Gomathiammal, (1984) 55 STC 210, by adopting the ratio of 50:50. It is further submitted that the penalty, which has been imposed at 150%, may be reduced and 50% penalty may be imposed on the 50% of the escapped turnover. It is further submitted that the concerned Assessing Officer has levied penalty on the additional Sales Tax and surcharge and it is impermissible in the light of the fact that the subject Assessment Year is 1992-93 and Section 3-B of the Tamil Nadu Additional Sales Tax Act was inserted by Tamil Nadu Act 31/96 vide Gazette dated 9.9.1996, effective from 16.04.1997 and therefore, no penalty on additional Sales Tax and surcharge could be levied. In support of such contention, reliance was placed on judgment of a Division Bench of this Court in S.P.G.Ramasamy Nagar & Sons Vs. Commercial Tax Officer -III, Virudhunagar and Others, (2004) 136 STC 606.