(ORDER OF THE COURT WAS MADE BY K.RAVIRAJA PANDIAN,J) This revision has been filed under Section 38 of the Tamilnadu General Sales Tax Act (hereinafter referred to as the Act) against the order of the Sales Tax Appellate Tribunal dated 30.9.1999 in TA.No.746 of 1998 and COP.No.255 of 1998 wherein and whereby the penalty levied on the additional sales tax has been set aside by the Tribunal.
2. In the absence of any specific provision or substantive provision in the additional sales tax for levy of penalty, such a levy has been held to be invalid by the Supreme Court in the case of India Carbon Ltd. Vs. State of Assam (reported in (1997) 106 STC 460). Hence, the levy of penalty on additional sales tax has rightly been deleted by the Tribunal particularly when the levy is made for the assessment year 1994-95.
3. As aftermath of the said decision, an amendment has been brought into the statute under Section 3B of the Tamilnadu Additional Sales Tax Act, 1970 with effect from 24.9.2001. Section 3B of the Act has been incorporated in this Act wherein and whereby all the provisions relating to offenses and penalties of the Act, 1959 (Tamilnadu Act 1 of 1959) shall, with necessary modifications, apply in relation to the assessment, re-assessment, collection and the enforcement of payment of any additional tax required to be collected under this Act or in relation to any process connected with such assessment, reassessment, collection or enforcement of payment as if the additional tax under this Act, were a tax under the said Act with effect from 16.4.1997.
4. Learned counsel for the Revenue has brought to the notice of this Court that this amendment incorporated was argued as clarificatory and applicable even to the prior period and the same has been rejected by a Division Bench of this Court in the case of Eastern Electrics Vs. State of Tamilnadu (reported in (2009) 22 VST 544 (Mad)) wherein it was held that the reference to the Tamilnadu General Sales Tax Act, 1959 in Section 2(1)(b) of the Tamilnadu Additional Sales Tax Act, 1970 was to provisions of the said Act 'in relation to tax' only and nothing more. That is why after the decision in Karthik Roller Flour Mills Pvt.Ltd Vs. State of Tamilnadu (Writ petition Nos.6777 and 6778 of 2001 decided on 14.8.2002), the Legislature amended Section 2(1)(b) to include the words 'and interest'. If it was the intention of the Legislature that the entire gamut of the provisions of the 1959 Act were to be applied to the 1970 Act then it could very well have said so. Thus the 1970 Act as it reads before the insertion of Section 3B with effect from 16.4.1997 had no charging provision. Section 3B is not a clarificatory section. It introduces the power to levy penalty for the first time. A charging section is substantive law and in the absence of substantive provision in the 1970 Act itself relating to levy of penalty the provisions of the Tamilnadu General Sales Tax Act cannot be the source of power of such levy. Similarly unless there is a charging section for levy of penalty there can be no automatic reading of the power to levy penalty. Thus, penalty cannot be levied under the 1970 Act for periods prior to 16.4.1997.
5. Thus, even the argument that the amendment incorporated in the 1970 Act by introducing Section 3B is only clarificatory has been rejected by the Division Bench. In view of the enunciation of law both by the Supreme Court as to the leviability of penalty as well as by this Court as to the effect of amendment, we are of the considered view that there remains nothing to be considered in this revision and that the revision is to be dismissed.
6. Accordingly, the revision petition is dismissed. No costs.