State of Tamil Nadu vs Sha Kundanmull Bhavarlal and Co.

Dr. A.S. Anand, C.J.—The only question involved in this tax revision case is, whether the Deputy Commissioner in exercise of his suo motu powers of revision u/s 32 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as "the Act"), could levy penalty u/s 12(3) of the Act where the assessing authority, making a best judgment assessment u/s 12(2) of the Act, did not pass any order levying penalty, nor even proposed to invoke that power even in the pre-assessment notice ? The Sales Tax Appellate Tribunal, Additional Bench, Madras, took the view that the levy of penalty was not permissible in so far as the Deputy Commissioner is concerned while exercising the power u/s 32 of the Act. The Tribunal found in the facts and circumstances of the case that penalty u/s 16(2) of the Act could not be levied by the Deputy Commissioner.

It is seen from the record that the Deputy Commissioner exercised the suo motu powers of revision u/s 32 of the Act and in exercise of those powers, levied penalty u/s 16(2) of the Act. The assessing authority had made an order of assessment on the best of judgment u/s 12(2) of the Act. The assessing authority had not imposed any penalty u/s 12(3) of the Act and had not even proposed to levy a penalty in the pre-assessment notice issued before finalising the assessment on the best of judgment. The order which the Deputy Commissioner was, therefore, revising u/s 32 of the Act was an order passed u/s 12(2) of the Act by the assessing authority. There were no proceedings u/s 16 of the Act which were sought to be revised by the Deputy Commissioner when he levied penalty u/s 16(2) of the Act.

Learned Additional Government Pleader (Taxes) submitted that section 16(2) of the Act had got incorporated in the order of the Deputy Commissioner due to a clerical mistake and that the penalty which was levied by the Deputy Commissioner was u/s 12(3) of the Act. Assuming that the argument of the learned Additional Government Pleader (Taxes) is correct, we are of the opinion that having regard to the fact that no order was made by the assessing authority levying penalty nor even a proposal to invoke the power u/s 12(3) of the Act relating to penalty had been made, the Deputy Commissioner could not, independently, in exercise of the suo motu power, invoke section 12(3) of the Act and levy penalty. The Deputy Commissioner, appellate authority, therefore, exceeded his jurisdiction while suo motu revising the order u/s 12(2) of the Act to levy penalty u/s 12(3) of the Act. The answer to the question posed in the earlier part of the judgment, therefore, is in the negative.

In the view that we have taken, we do not find any cause to interfere with the order of the Tribunal particularly when we find that the view taken by the Tribunal is also in accord with the law laid down in Deputy Commissioner of Commercial Taxes, Madurai Division Vs. K.M. Thomas and Co., . The tax revision case fails and is dismissed.

Petition dismissed.