1990 (6) TMI 211

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..... er, this amount had been shown in the trading accounts for the above period. 3.. Non-disclosure of this amount which represents the sale proceeds of the transaction with L P Feeds Compounding Company owned by the Government, in the return submitted in the month of June is deliberate and, therefore, the penalty provision aforesaid is attracted, is the case of the department. Consequently the assessing authority levied a penalty which is double the tax, the petitioner is liable to pay. This order was under attack before the Deputy Commissioner, who by order in RP 102/80 dated November 30, 1981, set aside the order and remanded the penalty proceedings to the assessing authority for a de novo consideration. The remand order reads: "The al .....

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..... ibit P4 order modified the order and reduced the penalty which is equal to the tax due. 4.. The question thus arising for consideration is whether the return submitted by the petitioner in the month of June for the period from April to June can be said to be untrue or incorrect. That the taxable turnover of Rs. 6,89,157.41 relating to the period from April 1, 1977 to June 30, 1977, had not been disclosed in the statutory return in form No. 9 is beyond dispute. That the said taxable turnover, however, had been shown in the trading accounts of the petitioner, is beyond challenge. The non-disclosure of the above taxable turnover is explained by the assessee thus: This taxable turnover represents the proceeds from the sale of polythene, bags, .....

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..... within the prescribed period, or if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority may determine the amount of tax payable by the dealer in accordance with the provisions of sub-section (3) of section 17." Sub-section (3) of section 17 empowers the assessing authority to make a best judgment assessment. That means, if the assessing authority was of the view that the return submitted by the assessee was incorrect or untrue, the assessing authority could have made a best judgment assessment. Such a best judgment assessment, however, is not possible in a case where the assessee had shown the details of the particular sale which was not disclosed in the return, in his tra .....

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