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Judgment
Thanikkachalam, J.—The department is the petitioner herein. The assessee did not disclose a turnover of Rs. 38,500 in the A-1 return. A
penalty notice was issued by the assessing officer to show cause as to why penalty should not be levied u/s 12(5) of the Tamil Nadu General Sales
Tax Act, 1959. The assessee filed a letter dated February 11, 1982, stating that the investigation of accounts did not indicate any omission of
purchase or sale or any other transaction, and hence the levy of penalty is not justified. However, the assessing officer refused to accept the
explanation offered by the assessee, and accordingly, minimum penalty of Rs. 1,910 being 50 per cent of the tax due on the turnover not disclosed
was levied. On appeal, the Appellate Assistant Commissioner confirmed the penalty levied by the assessing officer. Aggrieved the assessee filed an
appeal before the Tribunal and the Sales Tax Appellate Tribunal deleted the penalty levied by the authorities below, since according to the
Tribunal, the assessee pointed out the mistake even before the completion of the assessment made by the assessing officer.
Aggrieved by this order, the department has filed this revision before this Court.
The learned Additional Government Pleader (Taxes) submitted that the assessing officer pointed out that the turnover of Rs. 38,500 was not
disclosed in A-1 return. According to the learned Additional Government Pleader (Taxes) only after this mistake was pointed out by the assessing
officer, the assessee came forward with an explanation that due to inadvertence the turnover in question was not reported in A-1 return. According
to the learned Additional Government Pleader (Taxes), if any revised return was filed by the assessee and the tax due on the turnover which was
not disclosed, was paid, before completing the assessment, then the penalty is not leviable u/s 12(5) of the Act. In the present case the learned
Additional Government Pleader (Taxes) pointed out that the assessee has neither disclosed the turnover of Rs. 38,500, nor paid the tax due
thereon before completing the assessment, and therefore, the Tribunal was not right in deleting the penalty levied by the assessing authority.
On the other hand none was present on behalf of the assessee. This revision came up for hearing on an earlier occasion and the assessee was not
represented through any counsel and therefore it was directed to be posted for hearing today. Even today, nobody was present on behalf of the
assessee. We have considered the arguments of the learned Additional Government Pleader (Taxes) and perused the records carefully.
The fact remains that the assessee failed to disclose the turnover of Rs. 38,500 in A-1 return. The assessee explained that the investigation of
accounts did not indicate any omission of purchase or sale or any other transaction, and therefore, it was submitted that the levy of penalty is not
warranted. Generally if the assessee files a revised return and pays tax on the turnover, which was not disclosed before completing the assessment,
the Tribunal used to delete the penalty levied u/s 12(5) of the Act. But in the present case, there was no evidence on record to show that any
revised return was filed or any tax due on the turnover which was not disclosed was paid, before completing the assessment. In such
circumstances, the penalty levied by the authorities below, u/s 12(5) of the Act cannot be said to be not justified. Hence, we set aside the order
passed by the Tribunal and restore the penalty levied u/s 12(5) of the Act. In that view of the matter, this tax case is allowed. No costs.
Petition allowed.