STATE OF TAMIL NADU Vs. ANAMALLAIS ENGINEERING

JUDGEMENT

(1.) THE Revenue is the petitioner herein. The assessing authority in his revised order dated February 28, 1997 levied a penalty of Rs. 43,988 under Section 12(3) of the Tamil Nadu General Sales Tax Act, 1959 and also confirmed the assessment in a turnover of Rs. 5,10,000 for the financial year 1994 -95. Aggrieved against the same, the assessee preferred an appeal before the Appellate Assistant Commissioner, who in turn confirmed the order of the assessing authority and dismissed the appeal. Aggrieved against such dismissal, the assessee filed an appeal before the Sales Tax Appellate Tribunal disputing both the turnover and the penalty of Rs. 43,988 levied under Section 12(3) of the Act. Since the assessee had not pressed for the main issue, viz., fixation of turnover at Rs. 5,10,000, the Tribunal confirmed the assessment order in respect of the turnover, but the only question, which was disputed and argued at length before the Tribunal, was that the levy of penalty under Section 12(3) of the Act in view of the subsequent development in law. The Tribunal found that the assessment was made based on the accounts produced by the assessee before the Department and not on the basis of any other material. Therefore, if any assessment was made under Section 12(1), the penalty under Section 12(3) cannot be invoked. The Tribunal relying upon the decision of this Court Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer (FAC) reported in, [2002] 125 STC 505 has categorically held that as the assessment has been completed under Section 12(1), especially when the amounts were available in the records, question of imposition of penalty under Section 12(3) does not arise. The relevant portion of the decision of this Court (cited supra) is extracted as under (at pages 508 -509):

(2.) A reading of this ruling would categorically prove beyond any reasonable doubt that the said decision is squarely applicable to the facts of the present case. Following the said decision, the Tribunal has rightly set aside the penalty alone imposed by the authority under Section 12(3) of the Act.