1. The total turnover of the assessee was Rs. 1,02,689-14-9, as estimated by the departmental authorities. The assessee's accounts showed a turn-over of only Rs. 47,239-1-8. It was also in evidence, based primarily on the note book of the assessee seized, that for a period of two months purchases to the extent of Rs. 36,209-9-6 had been suppressed, in the sense that they were not brought into the accounts produced by the assessee.
2. The explanation of the assessed with reference to the entries in the note book was, that the note hook did not record completed transactions, but that only transactions which were expected to materialise in Future were noted there to aid the memory of the assessee. The assessee further pleaded that, when transactions materialised the entries from the note book were brought to his regular account books, and the turnover of those transactions was about Rs. 11,000. The Tribunal observed in paragraph 2 of its order that this argument was not without force, and that under the circumstances there was no necessity for the assessee to keep the transactions out of his accounts. In paragraph 5 of its order the tribunal recorded ''it can only he regarded as a case where the appellant did maintain accounts in respect of the suppressed transactions but failed. We are not prepared to hold 'wilfully' to produce that account before the assessing authority.
3. There was no specific finding by the Tribunal that the assessee, who had been a licensee, did not contravene the provisions of Section 13 of the Madras General Sales-tax Act. It is difficult on the basis of the order of the Appellate Tribunal for us to Substitute a categorical finding. We, therefore, direct the Tribunal to submit a finding on the evidence, which was already considered, on the question, whether there was a contravention of Section 13 of the Madras General Sales-tax Act. Finding to be submitted within one month.
(After the return of the Finding, the Court delivered the following Order.-- (Delivered by Rajago-palan J.) :--
4. The assessee held a licence during the assessment year in question as a dealer in cotton. The accounts he furnished were not accepted as correct. A note book which he stated he had maintained for his personal use contained some entries. The taxing authorities held that part of the turnover of the assessee had been suppressed from the regular accounts he maintained and produced for the inspection of the departmental authorities. So, in addition, to the turnover he had disclosed an estimate was made of what he had suppressed, and it was on the total that he was assessed to sales-tax.
(5) When the matter came up before the Appellate Tribunal, it was held in paragraph 5 of its order,
'In our view this is not a proper case where the appellant should be taxed at 3 pies. At the worst it can only be regarded as a case where the appellant did maintain accounts in respect of these suppressed transactions but failed, we are not prepared to hold 'wilfully' -- to produce that account before the assessing authority. We take the view that in respect of the suppressed turnover or the turnover which is estimated as suppressed the appellant can be called upon to pay tax at one-half of one per cent.'
6. It was this direction of the Appellate Tribunal, that the Government sought to revise by the application preferred to this court under Section 12 (B) of the General Sales-tax Act.
7. The contention of the learned Government Pleader was, that under Section 6 (A) of the Act, the assessee, having broken the conditions of the licence that had been issued to him and held by him during the assessment year in question, forfeited his tight to the concessional rate of 1/2 per cent and that he was liable to pay the full amount under Section 3 of the Act.
8. As there was no specific finding recorded by the Tribunal, that the conditions of the licence held by the assessee had 'been contravened, we called for such a finding on that issue. That finding has been submitted by the Tribunal and it is against the assessee. The finding was supported by evidence on record, and we accept that finding, as we must.
9. If a condition of the licence held by the assessee was contravened, Section 6 (A) undoubtedly comes into play.
10. Section 6 (A), however, does not make it obligatory on the assessing authority to deprive the licensee of any statutory concession to which he is entitled. Section 6 (A) is only permissive. The use of the expression ''may' would appear to leave the discretion to the assessing authority, which discretion, of course, could also be exercised by the Appellate Tribunal. Where circumstances do justify the exercise of the discretion in favour of the assessee, the Appellate Tribunal has jurisdiction to direct that the full tax which the assessee, who has contravened the condition of the licence held by him, would be liable to pay under the charging sections, for example, Section 3, should be levied. This discretion of course, must be used judicially.
11. Paragraph 5 of the order of the Appellate Tribunal, which we have extracted above, would appear to indicate that the Tribunal, in the exercise of its discretion, decided that even on the estimated turnover, which was held to have been suppressed, it was enough if the assessee was called upon to pay at the concessional rate to which he would have been entitled had he not broken any condition of the licence held by him. The Tribunal apparently overlooked the scope of Section 6 (A) when it gave that direction. The Tribunal no doubt regarded that the suppression had not been wilful. But the Tribunal did not even go into the question, in the first instance, whether the suppression of the turnover constituted a breach of the condition of the licence held by the assessee. Since a really relevant factor was not taken into account, we are unable to hold that, the discretion exercised by the Tribunal is entitled to that sanctity, which we must normally accord to an order passed based on a discretion vested in a statutory Tribunal.
12. We set aside the order of the Tribunal, and direct that the appeal be remanded for disposal afresh by the Tribunal. No order as to costs.