RAINBOW FOUNDATIONS LTD. Vs. ASSISTANT COMMISSIONER (CT) (FAC)

JUDGEMENT

(1.) THE Petitioner has challenged the order dated July 30, 2009, which is made in exercise under Section 16(2)(d) of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as "the Act") levying penalty in respect of the assessment year 2005 -06. Originally the assessment was made on April 20, 2009 in exercise of powers under Section 16 of the Act as an escaped assessment. The Petitioner offered the turnover in entirety under self -assessment scheme provided under Section 12C of the Act and claimed nil turnover. Subsequently, the assessment order sought to be made to fix the liability under Section 7C of the Act in respect of turnover of Rs. 5,75,34,540. Admittedly, no order of penalty was made under this proceeding. However, notice was issued on April 20, 2009 proposing to levy penalty under Section 16(2)(d) of the TNGST Act. The Petitioner objected to the same having regard to the provisions of Section 16(2) of the Act that a penalty could be levied only when there is a wilful non -disclosure and the assessment itself based on the book turnover, there could be no ground for treating it as a wilful nondisclosure to attract levy of penalty under Section 16(2) of the Act.

(2.) QUITE apart from that the Petitioner has relied on a decision of this Court in Deputy Commissioner (C. T.) Coimbatore v. V.S.R. Ramaswami Chettiar and Bros., (1976) 38 STC 382 and stated that there could be no separate or independent order under Section 16(2) of the Act. Consequently, the assessing authority has no jurisdiction to levy penalty by a separate and independent order. However, by order dated July 30, 2009, the Respondent confirmed the proposal on the view that Section 12C of the Act was inserted by Act 37 of 2006, consequently, the decision of this Court is passed prior to the insertion of section, which is not applicable to the facts of the case.

(3.) THE decision of this Court clearly holds that under Section 16(2) of the Act, the assessing authority has no jurisdiction to impose penalty by a separate and independent order. Even if a statute has brought in a new section by way of Section 12C, given the fact that Section 16(2) of the Act remains as it is, the view of the officer that by introduction of 12C, Section 16(2) will lose its vitality, hence, the decision has no relevance, cannot be accepted by any standards of reasoning.