IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.12.2009 Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE M.M.SUNDRESH W.P.No.20333 of 2000 M/s Bengal Chemicolour Co., No.150, G.N. Street, Chennai 1 Petitioner v. 1. The State of Tamilnadu rep. By The Deputy Commissioner (CT) Chennai North Division PAPJM Building Greams Road, Chennai 6. 2. The Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench) Chennai rep. By its Secretary, City Civil Court Buildings High Court Compound Chennai 104. 3. The Commercial Tax Officer, Sowcarpet III Assessment Circle Chennai Respondents Writ petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorari to call for the records of the 2nd respondent in S.T.A.No.107/99, quash the order dated 10.07.2000 made therein. For Petitioner : Mr.P.Rajkumar For Respondents: Mr.Haja Nazirudeen, SGP JUDGMENT (Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.) The writ petition is filed by the petitioner against the order of the Sales Tax Appellate Tribunal dated in S.T.A.No.107/99 dated 10.07.2000 restoring penalty under Section 12(3)(b) of the TNGST Act read with Section 9(2-A) of the CST Act. https://hcservices.ecourts.gov.in/hcservices/ 2. When the matter is taken up for orders, the counsel for the department as well as the counsel for the assessee submitted that the issue has been covered by the Division Bench of this court in the case of Appollo Saline Pharmaceuticals (Private Limited) vs. Commercial Tax Officer (FA) and others reported in (2002) 125 STC 505 in favour of the assessee to the effect that the penalty levied under Section 12(3)(b) of the TNGST Act read with Section 9(2) of the CST Act cannot be levied in respect of the assessment made under Section 12(1) of the TNGST Act. 3. In the present case, the penalty has been levied only in respect of the assessment made under Section 12(1) of the TNGST Act which is against the statutory provision as well as the law laid down by this Court in the above said Judgment, wherein it was held thus:- "....7. Though other sub-sections of Section 12 were amended by the State Legislature subsequently to the date of the Judgment in the case of Jayaraj Nadar & Sons (1971) 28 STC 700 (SC),sections 12(1) and 12(2) have remained in the same form. The legislative intention therefore, except during the period December 3, 1979 to May 27, 1993 and on and after April 1, 1996 must be taken to be to, permit the levy of penalty only in case where the assessment is a best judgment assessment made on an estimate and not by relying solely on the accounts furnished by the assessee in the prescribed return. On and after April 1, 1996 an explanation has been added below Section 12(3) which requires the turnover relating to the tax assessed on the basis of the accounts of the assessee, to be disregarded, while determining the turnover on which the penalty is to be levied under Section 12(3). 8. The assessments for the assessment years 1993-94 and 1994-95 which were assessments made on the basis of the accounts, and not based on any other material and were not estimates have therefore, to be regarded as assessments made under Section 12(1) to which the penal provisions of Section 12(3) are not attracted. The levy of penalty for those two assessment years is set aside". https://hcservices.ecourts.gov.in/hcservices/ 4. Hence, following the Judgment referred to above, we are of the view that the order of the Tribunal levying penalty is not in consonance with the statutory provision as well as the law declared by this Court in the above said Judgment. Hence, the writ petition is allowed. No costs. rg Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Deputy Commissioner (CT) The State of Tamilnadu Chennai North Division PAPJM Building Greams Road, Chennai 6. 2. The Secretary, The Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench) Chennai,City Civil Court Buildings High Court Compound Chennai 104. 3. The Commercial Tax Officer, Sowcarpet III Assessment Circle Chennai + 1 cc to Spl Government Pleader, SR No.66143 + 1 cc to Mr.P.Rajkumar, Advocate SR No.65961 RB(CO) SR/15.12.2009 W.P.No.20333 of 2000 https://hcservices.ecourts.gov.in/hcservices/