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TMI Blog2007 (10) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... CHITRA VENKATARAMAN , JJ. ORDER:- The order of the court was made by K. RAVIRAJA PANDIAN J. The writ petition is filed challenging the correctness of the order made in O.P. No. 52 of 2002, whereby the Taxation Special Tribunal rejected the prayer of the petitioner for deletion of the penalty imposed on it under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959. For the assessment year 1993-94, the writ petitioner a manufacturer of steel and iron rough castings reported a total and taxable turnover of Rs. 68,60,790.10 and Rs. 66,44,492.10, respectively, in the monthly returns in form 1 under the TNGST Act. While framing the assessment, the assessing officer checked the returns with the books of account and almo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aj Nadar Sons reported in [1971] 28 STC 700. Subsequently, the issue has also been considered by the Division Bench of this court in the decision in Appollo Saline Pharmaceuticals (P) Limited v. Commercial Tax Officer (FAC) [2002] 125 STC 505. In those cases, the Supreme Court as well as the Division Bench has held that sub-section (2) of section 12 empowers the assessing authorities to assess the dealer to the best of its judgment in two events: (i) if no return has been submitted by the dealer under sub-section (1) within the prescribed period, and (ii) if the return submitted by him appears to be incomplete or incorrect. Sub-section (3) empowers the assessing authority to levy the penalty only when it makes an assessment under sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel on either side and perused the materials on record. The Division Bench of this court after taking note of the S.G. Jayaraj Nadar's case reported in [1971] 28 STC 700 (SC), in the case of Appollo Saline Pharmaceuticals (P) Limited v. Commercial Tax Officer (FAC) [2002] 125 STC 505, wherein also a similar dispute has arisen has held as follows (at page 508): 5. The Supreme Court in the case of State of Madras v. S.G. Jayaraj Nadar Sons [1971] 28 STC 700 at page 701 after extracting section 12(2) of the Tamil Nadu General Sales Tax Act, 1959 which remains in the same form even now, observed thus: 'The question is whether penalty can be levied while making the assessment under sub-section (2) of the above section merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mate and is not one based solely on the account books was reiterated by the Supreme Court in the case of Commissioner of Sales Tax, Madhya Pradesh v. H.M. Esufali H.M. Abdulali [1973] 32 STC 77. 7.. Though other sub-sections of section 12 were amended by the State Legislature subsequent to the date of the judgment in the case of S.G. Jayaraj Nadar Sons [1971] 28 STC 700 (SC), sections 12(1) and 12(2) have remained in the same form. The legislative intention therefore, except during the period December 3, 1979 to May 27, 1993 and on and after April 1, 1996 must be taken to be to permit the levy of penalty only in case where the assessment is a best judgment assessment made on an estimate and not by relying solely on the accounts furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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