(Judgment of the Court was made by F.M.IBRAHIM KALIFULLA, J.) The challenge in this writ petition is to the order of the second respondent Tribunal dated 16.11.1998 passed in T.A.No.732 of 1997 insofar as it related to imposition of penalty under Section 9(2A) of the CST Act, 1956, read with Section 12(3)(b) of the TNGST Act, 1959.
2. The relevant assessment year is 1994-1995. According to the first respondent, books of accounts were duly maintained and the return was also based on such accounts disclosed. It is also the common case that the assessment order was based on the accounts produced by the first respondent. The only defect was relating to the submission of 'C' forms. Nevertheless, penalty came to be imposed on the first respondent, which was set aside by the second respondent Tribunal. It is as against the said order of the Tribunal relating to levy of penalty under section 12(3)(b) of the TNGST Act, 1959, as well as
Section 9(2A) of the CST Act, 1956, the present writ petition has been filed.
3. When the writ petition was taken up for hearing, it was brought to our notice that this very issue as to the authority to levy penalty when the assessment came to be made based on books of accounts and not based on estimates, was earlier considered and covered by a Division Bench decision of this Court reported in (2002) 125 STC 505 (Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer (FAC) and Others). The Division Bench, by applying the ratio of the decisions of the Supreme Court reported in (1971) 28 STC 700 (SC) (State of Madras v. Jayaraj Nadar & Sons) and (1973) 32 STC 77 (Commissioner of Sales Tax, Madhya Pradesh v. H.M.Esufali H.M.Abdulali) has held as under in paragraph 8, "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."
As against the Division Bench decision when SLP was taken before the Honourable Supreme Court in SLP (Civil) CC.No.7583 of 2002, the same came to be dismissed at the admission stage itself on the ground of delay, by order dated 3.10.2002, leaving the question of law open.
4. In the light of the said Division Bench decision, which has followed the Supreme Court decisions, with which we concur, the writ petition stands dismissed, inasmuch as it is not in dispute that the assessment order came to be passed based on the books of accounts maintained and produced before the assessing authority, and was not based on any estimate or best judgment. There will be no order as to costs. Connected miscellaneous petition is closed.
vr To The Secretary, Tamil Nadu Sales Tax Appellant Tribunal (AB) Chennai 104