High Court Madras High Court

Tvl.Viking Warehousing vs The Commercial Tax Officer on 6 September, 2007

Madras High Court
Tvl.Viking Warehousing vs The Commercial Tax Officer on 6 September, 2007
       

  

  

 
 
           IN THE HIGH COURT OF JUDICATURE AT MADRAS
                              
                      DATED: 06/09/2007
                              
                            CORAM
                              
            THE HON'BLE MR.JUSTICE M.JAICHANDREN
                              
             Writ Petition No.28733 of 2007 
			    and
                      M.P. No.1 of 2007




Tvl.Viking Warehousing
No.5
G.N.T. Road
Moolakadai
Chennai 600 110
Rep. by its Partner Mr.Yagnesh R.Thakkar  	..Petitioner.

	 Versus
                              
The Commercial Tax Officer
Manali Assessment Circle
Kuralagam Annexure
First Floor
Chennai 600 018.                		..Respondent.




Prayer: 

	Petition filed under Article 226 of the Constitution
of India praying for the issuance of a Writ of Certiorari to
call for the records of the respondent, dated 29.06.2007, in
CST No.819523/2003-2004 and quash the same so far it relates
to  levy of penalty of Rs.75600/- under Section 12(3)(b)  of
the TNGST Act.



          For petitioner : Mr.N.Muralikumaran for Mc.Gan Law Firm

          For respondent : Mr.R.Mahadevan, Additional Government Pleader

                              

                          O R D E R

Mr.R.Mahadevan, learned Additional Government Pleader,

takes notice for the respondent.

2. With the consent of the learned counsels appearing

on either side, the writ petition is taken up for final

disposal.

3. It is submitted that the petitioner concern is an

assessee on the file of the respondent both under the Tamil

Nadu General Sales Tax Act, 1959, (in Short `the Act’) and

the Central Sales Tax Act, 1956. For the assessment year

2003-2004, the respondent had passed an assessment order, on

10.04.2005, accepting the total taxable turnover reported by

the petitioner concern and based on the books of accounts

submitted on its behalf. However, the respondent by its

proceedings, dated 14.03.2007, in CST.No.819523/2003-2004,

had issued a pre-revisional assessment notice holding that

the petitioner had leased out the cranes and collected the

lease charges for which it had to pay sales tax. It has been

further submitted that the petitioner was under the bonafide

impression that collection of lease charges by leasing out

cranes would not fall under the ambit and scope of the sales

tax laws and therefore, it did not pay any tax on the same.

When it was pointed out that the petitioner was liable to

pay sales tax on the amount collected as lease charges, it

had paid the entire amount of Rs.60,480/- at 12.6%. Only

thereafter, the revisional assessment notice had been issued

proposing to revise the turnover of the petitioner concern.

A revisional assessment order had been passed on 29.06.2007

revising the turnover of the petitioner. While revising the

turnover of the petitioner, the respondent had also levied

penalty, under Section 12(3)(b) of the Act. Therefore, the

petitioner had been constrained to file the present writ

petition, under Article 226 of the Constitution of India,

challenging the impugned order of the respondent, dated

29.06.2007, made in CST.No.819523/2003-04, stating that the

said order cannot be sustained in the eye of law.

4. It has been submitted on behalf of the petitioner

that once the tax had been paid, even before the issuance of

the show cause notice, the respondent does not possess the

power to levy the penalty. In case of escaped assessment of

tax, the respondent does not possess the power to levy

penalty, unless it is shown that the non-payment of tax is

due to wilful non-disclosure of the assessable turnover by

the dealer. Unless, the respondent could show that the

assessee had wilfully avoided disclosure of the assessable

turnover or avoided the submission of the returns or the

payment of tax, the question of levying of penalty does not

arise.

5. The learned counsel appearing for the petitioner had

relied on a decision of the Division Bench of this Court

made in State of Tamil Nadu Vs. Mahalakshmi Textile Mills

Limited (1996 100 STC 269), wherein the Division Bench by

following the decision rendered in State of Tamil Nadu Vs.

Lucky Rasi Radio House (1996 100 STC 210 (Mad.), had held

that where the defects in the original returns were

rectified by the dealer by filing a revised statement and

the tax due thereunder had been paid before the completion

of the assessment, it could not be said that the original

return was defective so as to attract penalty, under Section

12(5) of the Tamil Nadu General Sales Tax Act, 1959.

6. The learned counsel appearing for the petitioner had

also relied on a decision of the Apex Court made in Dilip

N.Shroff V. Joint Commissioner of Income Tax and another

(2007 291 ITR 519(SC)), wherein the Supreme Court, while

dealing with Section 55A and 271(1)(C) of the Income Tax

Act, 1961, had held that imposition of penalty is not

automatic. Levy of penalty is not only discretionary in

nature but such discretion is required to be exercised on

the part of the Assessing Officer keeping the relevant

factors in mind. Some of those factors apart from being

inherent in the nature of penalty proceedings, as has been

noticed in some of the decisions of this court, inheres on

the face of the statutory provisions. Penalty proceedings

are not to be initiated, as has been noticed by the Wanchoo

Committee, only to harass the assessee. The approach of the

Assessing Officer in this behalf must be fair and objective.

The Supreme Court had further held that for the levying of

penalty the respondent ought to show that there was a

deliberate act or omission on the part of the assessee. Such

deliberate act must be either for the purpose of concealment

of income or furnishing inaccurate particulars.

7. Mr.R.Mahadevan, the learned Additional Government

Pleader, appearing on behalf of the respondent has not

refuted the contentions raised on behalf of the petitioner.

8. In view of the submissions made by the learned

counsel appearing for the petitioner and taking note of the

decisions referred to in support of his contentions, the

impugned order of the respondent, dated 29.06.2007, made in

CST.NO.819523/2003-04, is set aside in so far as it relates

to the levying of penalty of Rs.75,600/- on the petitioner,

under Section 12(3) of the Tamil Nadu General Sales Tax Act,

1959.

Accordingly, the writ petition is allowed. No costs.

Consequently, connected M.P.No.1 of 2007 is closed.

csh

To

The Commercial Tax Officer
Manali Assessment Circle
Kuralagam Annexure
First Floor
Chennai 600 018.