STATE OF TAMILNADU Vs. FAMCO ENTERPRISES

JUDGEMENT

(1.) THE writ petition is filed by the department against the order of the Sales Tax Appellate Tribunal dated 07. 04. 1999 made in STA No. 37/98 deleting the penalty levied under Section 12 (3) (b) of the TNGST Act read with Section 9 (2-A) of the CST Act, 1956 by the Assessing Officer and confirmed by the First Appellate Authority.

(2.) THE first respondent/assessee for the assessment year 1995-96 was assessed on a total and taxable turnover of Rs. 20,60,565/- and Rs. 18,42,904/- as against the reported total and taxable turnover of Rs. 21,32,166/- and Rs. 19,14,505/- besides levying penalty of Rs. 38,853/- under Section 12 (3) (b) of the TNGST Act read with Section 9 (2-A) of the CST Act. The first respondent being aggrieved by the order, filed an appeal before the Appellate Assistant Commissioner, who by his order dated 03. 03. 1998 modified the order of the Assessing Officer and set aside the turnover of Rs. 2,93,424/- since the assessee had filed declaration forms to the extent and remitted the matter back to the Assessing Authority for fresh disposal. Regarding the balance turnover of Rs. 4,09,285/- the Appellate authority confirmed the assessment on the said turnover in the absence of the assessee filing the necessary C forms. As regards the penalty, the entire levy was set aside by the First Appellate Authority. The department being aggrieved against that order, filed an appeal before the Sales Tax Appellate Tribunal disputing the cancellation of penalty under Section 12 (3) (b) of the TNGST Act read with Section 9 (2) of the CST Act.

(3.) WHEN the matter is taken up for orders, the counsel for the department as well as the counsel for the assessee submitted that the issue has been covered by the Division Bench of this court in the case of Appollo Saline Pharmaceuticals (Private Limited) vs. Commercial Tax Officer (FA) and others reported in (2002) 125 STC 505 in favour of the assessee to the effect that the penalty levied under Section 12 (3) (b) of the TNGST Act read with Section 9 (2) of the CST Act cannot be levied in respect of the assessment made under Section 12 (1) of the TNGST Act.