KALAIMAGAL ACCOUNT BOOK SHOP v. STATE OF TAMIL NADU.
1992-06-24
BAKTHAVATSALAM, RAJU
body1992
DigiLaw.ai
JUDGMENT RAJU, J. - The above three tax appeals involve identical issues and have been argued together by the learned counsel appearing on either side necessitating their consideration also in common. The appellants are dealers in papers, boards, etc. For the assessment year 1971-72, they were assessed under the Tamil Nadu General Sales Tax Act, 1959, hereinafter referred to as "the Act", on a total and taxable turnover of Rs. 36,29,688 and Rs. 35,47,154.83 respectively by the assessing authority. Subsequently, there was a reassessment invoking the powers under section 16(1) of the Act on the basis of materials recovered during the course of inspection and the total and taxable turnover were refixed at Rs. 43,96,200.80 and Rs. 43,13,667.53 respectively for the said assessment year. The addition made during the course of reassessment on the basis of the records and estimates of the suppressed turnover was Rs. 9,43,990. Consequently a penalty of Rs. 40,838 was also levied under section 16(2) at 1 1/2 times the tax due on the suppressed sales of Rs. 8,25,990. The appellants challenged the reassessment by filing an appeal before the first appellate authority. The first appellate authority held that the actual suppressed sales as per anamath records recovered was Rs. 6,96,089 as against Rs. 8,25,990 determined by the assessing authority. So far as the penalty is concerned, the 1 1/2 times levied on the tax due on the suppressed sales was reduced and fixed at 75 per cent of the tax due on the suppressed turnover. Thus, the penalty was reduced and refixed as Rs. 15,246. The Joint Commissioner invoked suo motu powers of revision and, after issuing a show cause notice inviting the objections of the appellant, and hearing the representative of the assessee, confirmed the proposal to refix the penalty at Rs. 34,990 equivalent to 1 1/2 times the tax due on the suppression sustained even by the Appellate Assistant Commissioner. Aggrieved, the appellants have filed T.C. (A) No. 159 of 1983 before this Court. For the assessment year 1973-74, the appellants were initially assessed on a taxable turnover of Rs. 55,55,370.84. As in the case of the other year, the assessment was reopened, under section 16 of the Act on the basis of the materials secured during the course of inspection and the total and taxable turnover were refixed at Rs. 59,99,508 and Rs. 57,10,352 respectively.
55,55,370.84. As in the case of the other year, the assessment was reopened, under section 16 of the Act on the basis of the materials secured during the course of inspection and the total and taxable turnover were refixed at Rs. 59,99,508 and Rs. 57,10,352 respectively. There, was an earlier appeal and remand and the appellant was once again assessed thereafter. Penalty at 1 1/2 times the tax due was fixed on the actual sale suppression to the tune of Rs. 1,39,989. On appeal before the first appellate authority, the addition was sustained to the tune of Rs. 1,30,024 and the penalty was also reduced to 75 per cent of the tax due on the suppressed turnover as determined by the appellate authority. Consequently, the penalty was reduced to Rs. 3,413. The Joint Commissioner, while exercising suo motu powers of revision, after giving due opportunity to the assessee, confirmed his proposal to enhance the penalty and refixed the same at 1 1/2 times, amounting to Rs. 6,826. Aggrieved, T.C. (A) No. 231 of 1983 has been filed. For the assessment year 1972-73, a total and taxable turnover of Rs. 32,00,522.01 and Rs. 30,26,957.71 was determined during the course of initial assessment. Subsequently, the assessment was revised invoking the powers under section 16(1) of the Act on the basis of the materials recovered during the course of inspection and the total and taxable turnover were refixed at Rs. 32,75,575 and Rs. 31,02,010 respectively. Earlier there was an appeal and remand and the appellant was once again assessed thereafter. The assessee pursued the matter on appeal before the first appellate authority. The said appellate authority sustained additions to the tune of Rs. 1,31,467.85 only and refixed the penalty at 75 per cent of the tax due of the suppressed turnover sustained by the appellate authority. The penalty was thus refixed at Rs. 3,450. Aggrieved, T.C. (A) No. 232 of 1983 has been filed. Learned counsel appearing for the appellants before this Court submitted that the revisional authority ought not to have disturbed the order of the first appellate authority made in exercise of its discretion by reducing the penalty to 75 per cent and that the Joint Commissioner exceeded his power under section 34 of the Act in interfering with the discretion exercised by the first appellate authority.
According to the learned counsel for the appellants, the exercise of discretion by the appellate authority could not be said to be either wrong or perverse and therefore could not be the subject-matter of a suo motu revision. Learned Additional Government Pleader (Taxes) contended that the appellate authority did not properly apply its mind to the quantum of penalty as was expected of him and merely reduced the penalty by a rough and ready method without assigning any reason whatsoever. Therefore, according to the learned counsel for the Revenue, once the appellate authority itself held the assessee guilty of suppression of turnover, the said authority ought not to have interfered with the quantum of penalty, particularly when on the facts it could be seen that but for the inspection and unearthing of materials in the shape of anamath accounts and records, the tax due to the State could have been lost and the assessing authority as well as the revisional authority were well justified in sustaining the penalty at 1 1/2 times. We have carefully considered the submissions of the learned counsel appearing on either side. We are of the view that the orders of the Joint Commissioner do not call for any interference in our hands. Under section 34 of the Act, the Joint Commissioner has been empowered on his own motion to call for and examine the orders of the various authorities below, specified in the section including the one passed on an appeal by the first appellate authority and after making such enquiry or after causing such enquiry to be made, revise, modify or set aside such order or proceeding and may pass such order thereon as he thinks fit. Of course, the exercise of power is subject to the period of limitation prescribed and could not be resorted to if the time for appeal has not expired or if the order has been subjected to an appeal before the Tribunal or a revision in the High Court.
Of course, the exercise of power is subject to the period of limitation prescribed and could not be resorted to if the time for appeal has not expired or if the order has been subjected to an appeal before the Tribunal or a revision in the High Court. The suo motu power of revision conferred upon the Joint Commissioner is expressed in wide terms and in our view is in keeping with the object as well as the duty of such superior authority to see and ensure that the subordinate authorities act and keep themselves within the bounds prescribed by law and not only that such subordinate authorities do their duties but they so discharge their duties in a legal manner. The scope and extent of powers were not subjected to any limitation or conditions in the manner and extent of its exercise, the only safeguard being that it should also act properly and exercise its jurisdiction judicially. We are alive to the fact that merely because the Joint Commissioner or the Commissioner as the case may be is at the helm of affairs, they are not expected or entitled to act ipso dixit or capriciously, but their action should be reasonable and based on sound exercise of discretion judiciously. The very object of the wide amplitude of powers conferred upon these authorities is to keep a watch and safeguard the interests of Revenue too. So far as the facts and circumstances of the instant cases are concerned, the first appellate authority itself held that the assessee had consciously committed the act of suppression and that the department has proved the existence of the relevant circumstances leading to the suppression and that, but for the investigation made by the department officials, the suppressed turnover would not have come to light at all. Having thus held and come to the conclusion that the facts and circumstances of the case warrant imposition of penalty, the question for consideration would be as to whether the said appellate authority was justified in reducing the quantum of penalty and whether the first appellate authority acted reasonably and judiciously in so reducing and also to see whether it assigned any reasons for such reduction.
The appellate authority though referred to certain general principles relating to the levy of penalty, merely and mechanically used the phraseology, "In the circumstances, I feel the levy of penalty at the maximum rate appears to be very high. I feel, penalty could be fixed at 75 per cent of the tax due on the suppressed turnover ...". Once again the said authority was of the view that the reduced rate would be adequate, fair and just on the facts and circumstances of the case. Thus the appellate authority did not point out any special or extenuating circumstance to justify interference in the matter of the exercise of its discretion for reducing the penalty in these cases. The power to impose a penalty for non-disclosure of any part of the turnover should depend upon the contumacious conduct and conscientious non-disclosure constituting suppression of the taxable turnover to evade the tax due to the State. No doubt, for mere offences or irregularities of technical nature resulting in best judgment assessment or additions, the maximum penalty may not be warranted. A careful analysis of the orders in the cases before us would disclose that these are not cases of such nature but, as noticed supra, in these cases, the very appellate authority came to the conclusion that the assessee consciously committed acts of suppression. In such circumstances, unless the appellate authority has specifically pointed out any extenuating circumstances to warrant a lenient view and reduction of penalty, a blunt assertion and expression of an opinion that in its view a reduction is called for cannot be said to be a proper judicious approach or judicial exercise of the powers or discretion vested with the appellate authority. These are no reasons in the eye of law. Even an appellate authority is obliged to exercise its discretion and jurisdiction judiciously and judicially and not in an arbitrary or capricious manner. It should also act in accordance with law and not consider to be a law unto itself. The fact that the appellate authority in these cases has not chosen to judiciously apply its mind and exercise its discretion will justify interference in exercise of suo motu powers of the Joint Commissioner available under section 34 of the Act.
It should also act in accordance with law and not consider to be a law unto itself. The fact that the appellate authority in these cases has not chosen to judiciously apply its mind and exercise its discretion will justify interference in exercise of suo motu powers of the Joint Commissioner available under section 34 of the Act. It is obvious on the facts of the cases which are before us that the appellate authority has miserably failed, as indicated supra, to make out any relevant or justifying reasons or circumstances to reduce the penalty and it is clear from the orders themselves that the appellate authority failed to take into account or advert to any relevant consideration in reducing the penalty. Consequently, we are of the view that the Joint Commissioner was not only right in interfering in the matter by invoking suo motu powers but also had a duty to interfere in the matter when as in this case decision of the appellate authority was so unreasonable that no reasonable authority with an obligation and duty to act reasonably and judiciously could have acted in the manner it did and come to the conclusion which has been arrived at by the said authority in reducing the penalty. Considering the volume as well as nature of suppressions, we feel that no exception could be taken to the orders of the Joint Commissioner under challenge before us in restoring the rate of penalty levied by the assessing authority and that the plea of the assessee that the revisional authority could not have interfered with the exercise of discretion by the appellate authority is far-fetched and cannot have our approval, at any rate in the cases before us. In view of our conclusion that the appellate authority failed to judiciously exercise its power and discretion and that the said authority acted erroneously without properly considering and assigning any reasons, the right of the Joint Commissioner to interfere in the matter by invoking his suo motu powers of revision cannot be denied to the said authority. For all the reasons stated supra, we see no reason or justification to interfere in the matter and the tax appeals therefore fail and shall stand dismissed. No costs. Appeals dismissed.