STATE OF TAMIL NADU Vs. VINAYAKA ENGINEERING WORKS

JUDGEMENT

(1.) THE State has come forward with this revision. Learned Special Government Pleader, in his submissions, contended that the order of the Tribunal is not sustainable on the legal position that it was not correct in having deleted the penalty levied under Section 12(3) of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as, "the Act") when turnover was available in the books of accounts. Learned Special Government Pleader also submitted that the levy of penalty up to the year 1992 -93 was held valid in law in the light of the decision reported in the case of Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer (FAC) : (2002) 125 STC 505 (Mad).

(2.) HAVING considered the contention raised by the learned Special Government Pleader, we are not able to accept the same and we are not inclined to entertain this revision as we do not find any question of law to be determined. The assessment year with which we are concerned relates to 1992 -93. The Respondent is a dealer in rolling shutters. The assessment for the said year was finally made on the total taxable turnover of Rs. 25,35,277. Before the assessing authority, the Respondent took the stand that its activity of supply of rolling shutters to its customers does not attract payment of tax inasmuch as the materials used for the rolling shutters at the site of the customers already suffered tax, though such goods had been moved to the site as rolling shutters. It is however not in dispute that the Respondent reported its turnover for the relevant year without any default.

(3.) BY relying upon the decision in Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer (FAC) : (2002) 125 STC 505 (Mad) to the effect that except for the period between December 3, 1979 and May 27, 1993, TNGST could be levied only in a case where the assessment is either best judgment assessment or one under Section 12(1) of the Act, we would only hasten to add that the assessing authority is bound to specify that levy of penalty was warranted, as stipulated under Section 12(3) of the Act. When we refer to Section 12(3)(b) of the Act, we find that under the said Section the set of expression contained in Section 12(3) (b) makes it amply clear that only in the case of submission of incorrect or incomplete returns, the question of any assessment being made at the instance of the assessing authority for levying penalty would arise.