9911796707
TMI Blog1977 (1) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... also purported to have given statement that he had been doing business in eggs and fowls for two years prior to that time. Another statement is also purported to have been given by the appellant on 31st May, 1974, wherein the words written in the day book and ledger as "KURUVIKAGARGAL PATTUVADA" denote the payments made by him towards purchase of fowls. It is on the basis of the these statements and the two account books recovered and the accounts having been verified by the assessing officer in the presence of the appellant. It was found between August, 1972 to March, 1973, the appellant had purchased male ducks to the extent of Rs. 3,741.33; he had made sales of male ducks for Rs. 3,295, and he had purchased eggs to the value of Rs. 31,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culled out from the ledger for Rs. 7,378.81 and the total purchase in hens, cocks and make ducks for the asst. yr. 1972-73 were taken as Rs. 1,50,266.81 to which 15 per cent was added towards gross profit and thus the sales turnover in respect of fouls and ducks for the assessment year was determined at Rs. 1,72,806.83 and the same was assessed at 3-1/2 per cent. With regard to the non-taxable goods of eggs, the total purchases of eggs from 1st April, 1973 upto 29th March, 1974 were arrived at Rs. 36,099.41, to which 15 per cent gross profit was added and the total sales turnover were arrived at rs. 41,514.32, out of which 50 per cent was taken as inter-State sales and the rest of the 50 per cent of sales of eggs being Rs. 20,757.61, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975, had not been taken into consideration. 5. Similarly, in Appeal TA No. 192/76, he contended that his taxable turnover for the asst. yr. 1973-74, was Rs. 491.25 as given in his return and disputing the addition of Rs. 1,72,316 to the taxable turnover determined and for levying penalty on him at Rs. 1,310 as ordered by the first appellate authority. He had also filed the petition TMP 430/76 for receiving by way of additional grounds questioning the validity of the order passed by the assessing officer and for levying penalty on him as the return filed by him on 21st Jan., 1975 had not been considered. 6. As the appellant and the issues involved are one and the same, we pass a common order. 7. The assessee/appellant s main contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer and considered with reference to the account books produced by the appellant. It such a case, it has been held in Bata Shoe Company Private Limited vs. The Joint Commercial Tax Officer that, if a return is filed before the final assessment order is passed, even though the return is filed belatedly, the assessing officer is not at liberty to ignore it and to apply his best judgment assessment and the return field belatedly has to be considered by the assessing officer in making the assessment and the very concept of best judgment presupposes the absence of a return, or a return which is incorrect or incomplete and so, the order of assessment as well as the levy of penalty were quashed in that case. In these two instant cases also, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the direction made in the communication of the superior officer to levy penalty cannot stand. For these two reasons, the orders of assessment and they levy of penalty have to be set aside the necessarily the matters must go back to the Assessing Officer for fresh consideration of the matter. In the view we have taken, it is unnecessary for us to go into the other objections as even if done, still, we will have to find the order of assessment and the levy of penalty cannot stand in view of the decision referred to above. 10. In the result, the levy of tax on the disputed turnovers is both the appeals and the levy of penalties on the appellant made for both assessment years are set aside and the entire matter is remanded to the assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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