D. Murugesan, J. - (1.) THIS tax case revision, at the instance of the revenue, was admitted on the following substantial questions of law:- -Whether the Sales Tax Appellate Tribunal is right in holding that penalty is not leviable under Section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 for the assessment year 1992-93 since the taxability or otherwise of sale of REP Licence was ultimately settled by the Supreme Court only in the year 1996 in 102 STC 106?"
(2.) THE brief facts that are required for the disposal of this revision petition are as follows: THE respondent-assessee had sold REP/Exim scrips for a sum of Rs.25,19,604/- during the year 1992-93 and they did not disclose the said sales turnover in the returns filed by them and consequently had not also paid the sales tax dues thereon. THE assessing officer, while passing the final assessment order, rejected the returns filed by the assessee without levying penalty as to the failure on the part of the assessee to disclose the said turnover in the returns. THE said order of the assessing officer came to be revised by the Deputy Commissioner (CT), Chennai (Central) Division suo motu under Section 32 of the Tamil Nadu General Sales Tax Act who, by his proceedings dated 12.6.2000, following the judgment of this Court in P.S. Apparels v. Deputy Commercial Tax Officer, T.Nagar East Assessment Circle, Madras, 94 STC 139, found that the failure on the part of the assessee to disclose the above sales turnover would attract levy of penalty and accordingly directed the assessing officer to levy penalty as suggested in the said order. The said order was questioned by the assessee before the appellate Tribunal. The challenge to the order of the Deputy Commissioner (CT), Chennai was two fold. The assessment was for the year 1992-93. The judgment in P.S. Apparel's case was rendered only on 4.4.94. Therefore, the penalty provisions, particularly, Section 12(5)(iii) cannot be invoked as at the time of filing returns, the law on this aspect was not clear as to whether REP/Exim scrips are taxable or not. The Tribunal accepted the challenge of the assessee and accordingly set aside the order of the Deputy Commissioner (CT), Chennai. Challenging the said order, the revenue has preferred this revision petition. We heard the learned Special Government Pleader (Taxes) for the petitioner and the learned counsel for the respondent-assessee.
(3.) THE only question to be decided is whether in the given facts and circumstances of the case, the revenue could invoke the provisions of Section 12(4) and Section 12(5)(iii) of the Tamil Nadu General Sales Tax Act for imposing penalty. Section 12(4) and Section 12(5) of the Tamil Nadu General Sales Tax Act read as under:- "12. Procedure to be followed by the assessing authority.--(1) to (3)..... (4) Notwithstanding anything contained in sub-sections (1), (2) and (3), the assessing authority may, if it is satisfied that the accounts maintained by a dealer are correct, assess such dealer on the basis of such accounts, if such dealer has (i) failed to submit the prescribed return or (ii) failed to submit the prescribed return within such period as may be prescribed or (iii) if the return submitted is found to be incorrect or incomplete. (5) The assessing authority may, in the order of assessment or by a separate order, direct that the dealer shall in addition to the tax assessed under sub-section (4), pay by way of penalty, a sum-- (i) which, in the case referred to in clause (i) of sub-section (4) shall not be less than fifty per cent but which shall not be more than one hundred and fifty per cent of the amount of tax payable (ii) which, in the case referred to in clause (ii) of sub-section (4) shall be equal to two per cent of the tax payable for every month or part thereof during which the default in the submission of the return continued subject to a maximum of fifty per cent of the tax and (iii) which, in the case referred to in clause (iii) of sub-section (4), shall not be less than fifty per cent but which shall not be more than one hundred and fifty per cent of the difference in tax payable on the turnover disclosed in the return and that determined by the assessing authority: Provided that no penalty under sub-sections (3) and (5) shall be imposed after a period of five years from the expiry of the year to which the assessment relates and unless the dealer affected has had a reasonable opportunity of showing cause against such imposition." ;