V. Ramaswami, J.
1. The assessee in this case is generally a dealer in arecanuts and spices. He was originally assessed by the assessing authority on a taxable turnover of Rs. 51,493.98 by an order dated 23rd June, 1962. Later, the said order of assessment was revised by the same authority Under Section 16(1) of the Tamil Nadu General Sales Tax Act on the basis of the information and materials gathered from the customs department which showed that the assessee had purchased various items including arecanuts at the auction sales held by them and that these sales had not been brought into the regular accounts of the assessee. In reply to the notice issued by the assessing authority proposing to revise the assessment Under Section 16(1), the assessee contended that he bought the goods at the auction held by the customs department to accommodate one Mr. Gopalan and in support of that case he also produced an affidavit from him to that effect. The assessing authority did not accept this plea of the assessee. On the basis of the information available from the customs department showing that it was the assessee who had purchased the goods from the department and not the said Mr. Gopalan, the assessing authority proceeded to revise the original assessment by including a sum of Rs. 84,730.05 to the turnover already determined by him in the original assessment.
2. The revised order of the assessing authority was challenged by the assessee before the Appellate Assistant Commissioner, who, by his order dated 6th March, 1964, deleted two turnovers, namely, (1) Rs. 43,255 and (2) Rs. 19,772, from the taxable turnover as revised by the assessing authority. As regards the sum of Rs. 19,772, the reason given by the Appellate Assistant Commissioner is that the assessee is a second seller and, therefore, he is not liable to pay the tax. The Appellate Assistant Commissioner also reduced the penalty to Rs. 750.
3. The order of the Appellate Assistant Commissioner came to be revised by the Board of Revenue in exercise of its suo motu power Under Section 34 of the Act. The Board of Revenue felt that the appellate authority was not justified in excluding the turnover of Rs. 19,772 on the ground that the customs department is the first seller of the goods and that, therefore, the assessee being a second seller cannot be taxed. According to the Board of Revenue, the assessee has not established by producing necessary documents that the customs department has collected sales tax on the assessee's transactions of purchase. In that view, the Board of Revenue added back the turnover as Rs. 19,464.50 in the tax-able turnover. The Board of Revenue also levied a penalty of 1 1/2 times the tax due on the enhanced turnover of Rs. 19,464.50, in addition to the penalty fixed by the Appellate Assistant Commissioner. The said order of the Board of Revenue is being challenged in this appeal.
4. It is contended on behalf of the assessee that the customs department is the first seller and, therefore, the assessee is not under an obligation either to include the turnover in his return or to pay tax thereon. We are not inclined to accept this contention. If the customs department is a dealer, as contended by the assessee, even then the assessee has to produce the necessary certificate in form No. 21 as provided in Rule 26(13) to claim exemption from tax in respect of his sales. Admittedly, the assessee has not complied with the requirement contained in that rule. If the customs department is not a dealer, then the assessee becomes the first seller in respect of the goods covered by the turnover of Rs. 19,464.50 and he will straightaway become liable to pay single point tax due on the goods in question. On either ground, the assessee cannot escape liability for payment of the tax in this case. We, therefore, agree with the view taken by the Board of Revenue on the taxability of the said turnover.
5. On the question of penalty, the learned counsel for the assessee contends that the non-disclosure of the turnover at the stage of the original assessment cannot be said to be wilful and, therefore, no penalty could be justified in this case. As already stated, the assessee did not disclose the turnover of purchase of various goods from the customs department at the stage of the original assessment and it was only after verification of the records from the customs department, the assessing officer himself chose to revise the original assessment. As a matter of fact, the assessee came forward with a case that he did not in fact purchase the goods from the customs department, but he purchased the same to accommodate another dealer. But that statement was found to be incorrect and the purchases from the customs department were held to be for the assessee's own account and benefit. On these facts, the assessing authority rightly concluded that the assessee had not come forward with the truth at the stage of the original assessment and that the penalty was justified Under Section 16(2). According to the learned counsel for the assessee, the Board of Revenue has no power to exercise the power Under Section 16(2) and enhance the penalty fixed by the Appellate Assistant Commissioner. We are of the view that the Board, in exercise of its revisional jurisdiction, had only modified the order of the appellate authority by imposing the correct amount of penalty, having regard to the turnover enhanced at the stage of revision.
6. The result is, the tax case is dismissed with costs. Advocate's fee Rs. 150.