9911796707
TMI Blog1986 (3) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... 54.96 Rs. 41,009.93 30-9-1963) 1964-65 (1-10-1963 to Rs. 19,85,195.45 Rs. 8,30,420.21 Rs. 36,210.60 30-9-1964) 1965-66 (1-10-1964 to Rs. 21,10,705.71 Rs. 9,04,270.61 Rs. 42,599.11 30-9-1965) ----------------------------------------------------------------------------- The books of accounts of the assessee were seized by the Commercial Taxes Officer, and on the basis of examination of the seized record and after hearing the assessee, the assessing authority determined under section 12 of the Act to the best of his judgment, the turnover of the assessee non-petitioner for the aforesaid years, said to have escaped assessment in the earlier assessment proceedings. The determination made by the assessing authority under section 12 of the Act is as follows: ---------------------------------------------------------------------------- Assessment year Actual evaded Estimated Additional Penalty turnover evaded tax imposed turnover under section 16(1)(e) ---------------------------------------------------------------------------- 1961-62 (October to Rs. 523 Rs. 2,000 Rs. 100 Rs. 200 September, 1961) 1962-63 (1-10-1961 to Rs. 84 Rs. 500 Rs. 25 Rs. 50 30-9-1962) 1963-64 (1-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Division Bench of the Board was also of the opinion that the turnovers were extremely small in comparison to the annual turnovers. It, therefore, held that the penalties under section 16(1)(e) of the Act were not justified. The assessing authority filed applications under section 15(1) of the Act on May 16, 1974, for referring the questions of law arising out of its order dated November 30, 1973. The applications were dismissed by order dated July 29, 1974. The assessing authority filed applications under section 15(2) of the Act requesting this Court to direct the Board to refer the questions of law arising out of its order dated November 30, 1973. This Court in D.B. Civil Sales Tax Cases Nos. 21 of 1975 to 25 of 1975, by its order dated September 16, 1975, directed the Board to state the case and refer the following questions arising out of its order dated November 30, 1973: "(1) Whether on the facts and circumstances of the case, the best judgment assessment can be made under section 12 of the Rajasthan Sales Tax Act for a period prior to its amendment by Act No. 11 of 1969 w.e.f. 2nd May, 1969? (2) Whether on the facts and circumstances of the case penalties can be imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board, in the special appeals, reference was made to Commissioner of Sales Tax's case [1973] 32 STC 77 (SC). It was held by the Board that in view of the decision of the larger Bench in State of Rajasthan's case 1973 RRD 357, the best judgment, reassessment could not be made under section 12 in respect of the cases prior to the insertion of the explanation to sub-section (1) of section 12 of the Act. In other words, the best judgment assessment/reassessment according to the Board could not be made in cases prior to May 2, 1969. It, therefore, followed its own decision in State of Rajasthan's case 1973 RRD 357 opining that the Commissioner of Sales Tax's case [1973] 32 STC 77 (SC) is not applicable. When the applications under section 15(2) of the Act were being considered by this Court, it was observed that when there is a decision of the Supreme Court, the Board could not have disregarded it merely because a Full Bench of the Board had taken contrary view. The explanation to sub-section (1) of section 12 of the Act is, in our view, merely explanatory. In Commissioner of Sales Tax's case [1973] 32 STC 77 (SC), section 19(1) of the M.P. General Sales Tax Act, 1958, and rule 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STC 77 (SC). While making reassessment under section 12 of the Act, if the assessing authority has no power to make best judgment assessment, then the assessee can escape reassessment by not filing the return or refuse to produce his account books. The contrary view taken in State of Rajasthan's case 1973 RRD 357 is contrary to the law laid down in Commissioner of Sales Tax's case [1973] 32 STC 77 (SC). We have no hesitation to say that larger Bench of the Board did not decide State of Rajasthan's case 1973 RRD 357 correctly and it should not have been followed in the case of reassessment of the assessee-non-petitioner in respect of the assessment years 1961-62 to 1965-66. Respectfully following Commissioner of Sales Tax's case [1973] 32 STC 77 (SC) we are of the opinion that in respect of assessment years 1961-62 to 1965-66, the reassessment could be made on the best judgment assessment though explanation was appended to sub-section (1) of section 12 of the Act w.e.f. May 2, 1969. The view taken by the Board in the special appeals was wrong. We hold that under section 12 of the Act, the reassessment can be made on the assessee-non-petitioner in respect of the five assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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