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TMI Blog2014 (5) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... ment assessment, whereby the returns filed by the assessee appears to the Assessing Authority to be incomplete or incorrect - It was held that in the case on hand there was no best of judgement assessment and hence the levy of penalty was set aside - Relying upon Appollo Saline Pharmaceuticals Private Limited Vs. Commercial Tax Officer (SAC) and others [2001 (10) TMI 1100 - MADRAS HIGH COURT] - Penalty may be levied only in case where the assessment is best of judgement assessment – The addition was only as regards the gross profit and freight and there was no suppression found in the turnover, otherwise - No sufficient cause or reason is found to set aside the order of the Tribunal - Hence, Revision stands dismissed – Decided in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s accounts had been maintained for taxable and non-taxable goods. 3. In view of the said position, it was proposed to reject the return of the assessee and the accounts as incorrect and incomplete and to determine the total and taxable turnover relating to the business of the assessee, for the assessment year 1993-1994, to the best of judgement as follows: Interstate purchases of M.S.Channels as per accounts Rs.5,98,255.00 ADD 10% towards G.Profit and Freight Rs. 59,826.00 Taxable turnover proposed at 4% Rs.6,58,081.00 Accordingly, a notice had been issued and duly served on the dealer inviting objections, if any, against the above proposal. However, the dealer did not file any obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority to exercise the power in a discreet manner. However, in the present case the penalty had been proposed purely based on the difference in the quantum of tax determined to the best of judgement and the tax paid on the admitted turnover. Further, the dealer had relied on the decision, reported in Birla Cement Works and another Vs. State of Rajasthan and another [94 STC 422 (SC)] to state that the penalty was not leviable. Accordingly, the dealer had requested the Assessing Authority to drop the levy of penalty. On examining the objections raised by the assessee the Assessing Authority had stated that the amended Section 12(3)(b) of the Tamilnadu General Sales Tax Act, 1959, was applicable only for the assessment year 1996-1997 and therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered the objections filed by the assessee and had concluded that the assessment was made, under Section 12(2) of the Tamilnadu General Sales Tax Act, 1959, and therefore, the penalty was leviable on the basis of the tax balance for the assessment year 1993-1994, as per the amended provisions of Act 25 of 1993. 9. It had also been found that the Assessing Authority had concluded that the decision, reported in Birla Cement Works and another Vs. State of Rajasthan and another [94 STC 422 (SC)], is not applicable to the amended provisions of Section 12(3) of the Tamilnadu General Sales Tax Act, 1959. It had also been held that it is an admitted fact that the assessee had not paid the entire tax due, on or before the final assessment and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consequence, only in those cases, where the return submitted by the assessee appeared to the assessing authority to be incomplete or incorrect. In the present case, the only amount that had been added to the turnover was that found in the books which had been accepted. There was therefore no best judgement assessment, in fact, as a result of the appellate order and the Tribunal was right in deleting the penalty." 13. The Tribunal had held that the above decisions would show that there must be turnover off the books to classify the assessment as having been made to the best judgement. In this case on hand, the assessment had been completed adopting the turnover of inter-state purchase as per books. No addition had been made towards omis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. The order of the Tribunal cannot be accepted as the Assessing Officer had made the assessment only under Section 12(2) of the Tamilnadu General Sales Tax Act, 1959, after considering the reply filed by the dealer and not under Section 12(1) of the Act, as held by the Tribunal. He had also stated that the Tribunal had failed to note that the levy of penalty, for the difference of the tax assessed and the tax paid, is automatic, after the introduction of the provisions, under Section 12(3)(b) of the Tamilnadu General Sales Tax Act, 1959, vide the amendment Act 25 of 1993. 16. Considering the submissions made by the learned counsels appearing on behalf of the Revenue, as well as the Assessee, and on a perusal of the records available ..... X X X X Extracts X X X X X X X X Extracts X X X X
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