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TMI Blog1991 (10) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... on the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, was justified to enhance the gross turnover returned by Rs. 2,50,000 on the basis of the abovementioned statement of the dealer alone without any materials adduced by the State (Revenue) to establish the purchase suppression in question in a proceeding under section 12(8) of the Orissa Sales Tax Act?" 2.. The background facts are that for the assessment year 1972-73, assessment was completed under section 12(4) of the Act. At the time of such assessment, the gross turnover returned at Rs. 1,99,513.53 was accepted. Subsequently on the basis of a report received from the Assistant Sales Tax Officer, Vigilance Wing, indicating purchase suppression, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistant Commissioner of Sales Tax, Berhampur Range, Berhampur, the assessee, inter alia, submitted that the suppression that can be culled out from the seized documents was Rs. 1,54,403.20, and therefore, the enhancement made was not justified. This found favour with the Assistant Commissioner of Sales Tax, who remanded the matter back to the assessing officer. On fresh assessment pursuant to the order of remand, the assessing officer made enhancement of Rs. 2,00,000 over the returned figures. During the course of hearing of appeal by the Assistant Commissioner of Sales Tax, Berhampur Range, Berhampur, notice of enhancement was issued. After considering the reply to the show cause notice, enhancement at Rs. 6,50,000 in place of Rs. 2,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement on August 25, 1973, accepting that the seized papers related to his business transactions. The Tribunal without any plausible material being brought on record, came to doubt the authenticity of the statement in view of subsequent statements made. Merely because criminal cases were instituted and the assessee was detained under the provisions of Maintenance of Internal Security Act, there is no scope for conclusion that the statement was obtained under duress. A person who asserts that the contents of an earlier statement made are not correct has to prove the same. Merely taking a plea to that effect is not sufficient. Be that as it may, we find that the assessee has accepted at different stages that the suppression was Rs. 1,54,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le making assessment under section 12(8) of the Act; and whether on the facts of the case, the Tribunal was justified in sustaining enhancement of Rs. 2,50,000?" For answer to this question it is necessary to refer to decisions of this Court in [1973] 32 STC 98 (State of Orissa v. Durgadutta Moda) and [1975] 35 STC 335 (New Orissa Traders v. State of Orissa). In both the cases the conclusions were to the effect that in a proceeding under section 12(8) the assessing officer is entitled to make a best judgment assessment, and he need not confine his assessment to the exact escaped turnover detected. But to support the estimate, materials must be found and indicated. It is open to the assessing officer to refer to the nature of the trade, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er giving reasonable opportunity of being heard, assess to the best of his judgment under section 12(5), the amount of tax if any due and penalty. Similar procedure is prescribed if turnover of a dealer has escaped assessment or there has been under-assessment under section 12(8). Best judgment assessment is not always enhancement assessment. It is significant to note that in section 12(4), 12(5) and 12(8), each one of which authorises best judgment assessment, the expression used is "the amount of tax, if any". But section 12(3) which deals with best judgment assessment in the event of failure to comply with the requisition of the assessing officer, the expression used is "amount of tax due". The terminological difference is not without si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [See Bherodhan Jethmal (Private) Ltd. v. State of Orissa [1970] 26 STC 536 (Orissa)]. Merely because the expression "best of his judgment" has been used in section 12(4) and 12(5) of the Act, it is not inferable that enhancement has to be made. In best judgment assessment there is no mandate to enhance. In Commissioner of Sales Tax v. H.M. Esufali H.M. Abdulali [1973] 32 STC 77 (SC), it has been clearly held that when the assessing officer comes to the conclusion that no reliance can be placed on the accounts maintained, he proceeds to assess on the basis of his "best judgment". Logically, where accounts can be relied upon, they may be accepted. The view of the Supreme Court that assessment based on books is not best judgment was expressed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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