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TMI Blog2010 (3) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... . (R.) Nos. 2228, 2229 of 2008 - - - Dated:- 18-3-2010 - PRABHA SRIDEVAN AND JANARTHANA RAJA P.P.S., JJ. ORDER:- The order of the court was made by MRS. PRABHA SRIDEVAN J. These revisions are filed by the assessee on the following questions of law: 1. Whether the Sales Tax Appellate Tribunal was correct in holding that the assessment made by the assessing authority was under section 12(2) of the Tamil Nadu General Sales Tax Act, 1959? 2. Whether the Sales Tax Appellate Tribunal was correct in holding that the statement showing consolidated turnover cannot be taken as a return prescribed? 3. The Sales Tax Appellate Tribunal has held in one place that the turnover was estimated on best judgment by the assessing off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laring the tax liability and therefore, the assessment was made on the basis of best judgment assessment . On appeal, the appellate authority referred to the words in the original order to show that A1 returns had been filed and only because they had not produced agreements, books of account, balance sheet, etc., in support of the A1 returns, and held that once A1 returns had been filed and on the basis of which, the assessment was made, invocation of section 12(3)(a) of the Act, is not correct. On appeal by the State, the Tribunal set aside the order of the Appellate Assistant Commissioner and therefore, the assessee is before us. The learned counsel for the assessee relied on [1993] 89 STC 349 (Mad) (State of Tamil Nadu v. P. S. Srini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12(2) of the Tamil Nadu General Sales Tax Act and therefore, the penal provisions under section 12(3) of the Act, are not attracted. 2. It is submitted by the counsel for the Revenue that the assessment is in fact based upon books of account, though the figures relating to that part of the turnover, on which tax as levied had not been disclosed in the return filed. Having regard to the law laid down by the Supreme Court in the case of State of Madras v. S. G. Jayaraj Nadar Sons [1971] 28 STC 700, it must be held that the assessment made is not a best judgement assessment. It follows therefrom that section 12(3) is not attracted in the levy of penalty and it is unwarranted. The impugned order of the Tribunal is, therefore, set aside an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1959. The tax case is, therefore, dismissed. In the order of the Tribunal, we find that the assessee had relied on the order passed in W.P. No. 10201 of 2000 dated October 1, 2001 (Rajarajeswari Finance, Sivakasi v. State of Tamil Nadu). The Tribunal had noted that in that case the assessment was made on the basis of the books of account and not based on any estimate and therefore levying penalty is not attracted. But, referring to the present case, the Tribunal observed that the turnover was estimated by the assessing officer on the basis of the particulars available in the books of account. It was not an estimate directly based on the books of account. . We are unable to see any distinction between the two. It is obvious that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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