BHARATHI MILLS Vs. STATE OF MADRAS

JUDGEMENT

(1.) THE assessee aggrieved mainly against the imposition of penalty by the Sales Tax Appellate Tribunal (Additional Bench), Madurai-2, has come up to this court. Though he has included in the grounds of appeal that the turnover found to be assessable by the Appellate Tribunal has also to be excluded from the purview of taxation, Mr. Chandrasekhara Sastry, learned counsel for the petitioner, does not press before us any contention otherwise than the propriety of the Tribunal in levying a penalty, though observing that it is a token one. THE facts necessary to note in this case in so far as the question under dispute is concerned are very simple. THE assessee bona fide believed that the purchases of cotton made by them were not last purchases and that, therefore, there was no occasion for them to file a return of such purchases of cotton made by them inside the State of Madras and in fact they did not provide the necessary materials to the taxing authorities in connection with their purchases of cotton. It transpired, however, that the sellers from whom the petitioner purchased cotton were interrogated by the department and in the course of such investigation a director of the petitioner-company gave an affidavit to the effect that the purchases made by them within the State were last purchases. In facts it was this statement which evoked the assessment proceedings.

(2.) IN the ultimate result, the petitioner was called upon by the revenue to submit their accounts for scrutiny and as a result thereof, for the assessment years 1959-60 and 1960-61, the authorities found that to the extent and on a turnover of at least Rs. 7, 00, 000 in the former assessment year and to the tune of about Rs. 1, 15, 000 in the latter assessment year there has been an escapement of tax. As there was no return, section 12(2) of the Madras General Sales Tax Act, 1939 was applied. As a result thereof, the Commercial Tax Officer as well as the Appellate Assistant Commissioner thought that section 12(3) of the Act should also be applied and a penalty imposed. It appears from the records that for the assessment year 1959-60, a penalty of Rs. 12, 796 was levied and for the assessment year 1960-61, a penalty of Rs. 26, 184 was imposed. The Appellate Tribunal after noticing the facts and accepting the assessment as such was of the view that the petitioner acted bona fide in not having made the return and such bona fides, if taken into consideration, would necessarily result in the penalty being reduced to a token penalty. IN this view, for each of the assessment years, they levied a penalty of Rs. 1, 000 and that imposition was understood to meet the ends of justice.As against this order, the present tax cases have been filed in revision. We have noticed already that the petitioner is not questioning the levy as such, but he is aggrieved against the imposition of the token penalty by the Appellate Tribunal for each of the year. Mr. Chandrasekhara Sastry, learned counsel for the petitioner, would state that as the assessment proceedings themselves sprung from an honest disclosure of the statement of affairs of the petitioner-company by one of the directors thereof, it should be taken for granted that the petitioner was acting bona fide throughout.

(3.) TO this judgment one of us was a party. It was not intended that these observations should be of general application and that it should be necessarily applied in all cases irrespective of facts and circumstances arising therein. In that case, no doubt was entertained about the arguable nature of the transaction, and having regard to the peculiar circumstances attendant upon the said case, the court came to the conclusion that if the point of view is arguable then section 12(3) will not be attracted. But in the instant case, it cannot be said that there was such an arguable case as pleaded and accepted by this court in T.P.S.R. Factory P. Ltd. v. Deputy Commercial Tax Officer. The petitioner did not file a return because he was sure that he had material on record to satisfy the authorities that it was not the last purchase of cotton within the State and it was on this ground that he refrained from filing the return. This is not to say that because the point was argyle and complicated, no such return was filed. Ultimately the assessee failed to establish from the material available with him and on the records disclosed, that the purchases made were not the last purchases in this State. We are of the view, therefore, that the observations in T.P.S.R. Factory P. Ltd. v. Deputy Commercial Tax Officer may not strictly apply to the facts of this case.