1980 (9) TMI 249

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..... ll be taken from the date of the order of the first appellate authority or the date of the order of assessment and the proceedings under section 39(2) were time-barred?" 2.. The facts in brief are as under: The assessee is a dealer in cement, general goods, etc., and the assessment year in question is 1962-63. The assessee had shown total sales at Rs. 4,48,831.56. The accounts were considered defective and rejected and best judgment assessment was made determining the turnover at Rs. 4,90,000. The Sales Tax Officer imposed a penalty of Rs. 2,500 under section 17(3) of the Act for delay in furnishing returns. 3.. The assessee appealed against the order before the Appellate Assistant Commissioner. The appellate authority confirmed the enh .....

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..... At the instance of the Additional Commissioner, the question stated above has been sent to us for opinion. 6.. The assessment order, annexure II, dated 21st August, 1964, shows that no penalty was imposed on the assessee under section 43(1) of the Act on the ground of alleged concealment of its turnover. In the assessee's appeal before the Appellate Assistant Commissioner only two questions had arisen for consideration; one was about the estimate of turnover and the other about penalty for late filling of return under section 17(3) of the Act. The Appellate Assistant Commissioner was not called upon to consider the question of penalty under section 43(1) of the Act. The default, if any, was in the assessment order itself. The order of the .....

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..... d the action was barred by limitation. The same was the case before the Tribunal (Board of Revenue, M.P.) and the Board of Revenue rightly held that the action taken under section 39(2) by the Commissioner was barred by limitation. 7.. The question referred to us, therefore, is answered as follows: Under the facts and circumstances of the case in which penalty under section 43(1) of the Act had not been imposed either by the assessing authority or by the first appellate authority, the time-limit for initiating the proceedings under section 39(2) of the Act will be taken from the date of the order of assessment and the proceedings under section 39(2) were time-barred. 8.. No order as to costs. Reference answered accordingly.
Case laws, .....

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