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TMI Blog1974 (2) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed under the Act for the year 1966-67 and for the quarters ending June and September, 1967. As a common question has arisen in all the three periods, these three references have been made. The Sales Tax Officer while making the assessments for all these three periods found suppressions in the accounts and, therefore, required the assessee to explain these suppressions and having not been satisfied with the explanations completed a best judgment assessment in respect of each of the periods by enhancing the turnover by about 26 per cent of the returned figures. The enhancements were sustained in first appeals as also in second appeals. 2.. The finding that the assessee had suppressed transactions from his accounts is not in dispute. In fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns. (2)(a) If the Commissioner is not satisfied without requiring the presence of a registered dealer who furnished the returns or production of evidence that the returns furnished in respect of any period are correct and complete, he shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a place to be specified therein, either to attend in person or to produce or to cause to be produced there any evidence on which such dealer may rely in support of such returns. (b) On the day specified in the notice or as soon afterwards as may be, the Commissioner after hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similar provisions as contained in sub-sections (3) and (4) of section 12 of the Act are found in sub-section (4) of section 23 of the Income-tax Act. Sub-section (1) of section 12 of the Act requires the assessing authority to make the assessment without the presence of a registered dealer or production by him of any evidence where he is satisfied that the return is correct and complete. Sub-section (2) of that section authorises the assessing authority to require the assessee to personally appear to answer questions or give explanations or to produce evidence in support of the return. During the assessment proceeding, even after the assessing authority has issued a notice under sub-section (2)(a) of section 12, a further notice may be g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-tax Act and some other cases under the Sales Tax Act. We do not find it necessary to examine all the cases cited by Mr. Mohapatra for the assessee, as, in our view, when the notice or notices issued under sub-section (2) of section 12 are not complied with to the satisfaction of the assessing authority a situation arises to which sub-section (3) would apply. It is not the physical presence of the assessee or the physical production of the books of account in answer to notices under sub-section (2) of section 12 that would amount to compliance with the terms of the notice/notices as provided in subsection (3) of section 12. It is for the assessing authority to decide whether there has been compliance with all the terms of his notice/notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion detected. This point was raised before the Assistant Commissioner and he refused to give relief in observing that the suppressions detected are illustrative and not exhaustive. If it were to be a case of a dealer having produced all his account books and the suppressions detected were to be exhaustive, certainly there would be no case to enhance the G.T.O. beyond the suppressed turnover detected. But the instant case is not so. The regular account books produced by the dealer did not disclose any evidence of the suppressed transactions and there is possibility of the dealer maintaining duplicate accounts. Exhibit III and slip No. 4 when totalled disclose total suppression of Rs. 30,211.84 which, In the circumstances, cannot be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the assessee's contention raised before the Tribunal that the enhancements had to be confined to the suppressions detected. On looking into the records and hearing the learned counsel for the parties, we are satisfied that an honest attempt had been made by the assessing authority to determine the actual turnover of the assessee-both disclosed and accounted for, and undisclosed and suppressed. In Esufali's case(1), the enhancement sustained was much more than 20 times. After all, on the facts of a given case, the vulnerability of the estimate has to be considered. Here the Tribunal has pointed out two aspects: (a) the suppressions are in respect of a small period out of the total period under consideration, and (b) it cannot be said that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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