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TMI Blog2016 (1) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... se of best judgment that the assessment has been done. On the contrary, the entries in the books of account varying with returns filed are relied upon and then the assessment has been completed. No provision has been pointed out to this Court which prohibits the department from looking into the returns which are filed belatedly i.e. after prescribed date. The provisions of Explanations I and II of Section 36(2)(c) of the said Act are no doubt mutually exclusive, but then that does mean that the provisions of Sections 33(3) and 33(5) of the said Act are also mutually exclusive. If the return is filed belatedly and it does not give correct and complete figures, the provisions of Section 33(3) of the said Act can be applied by the departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anations (1) and (2) of the said Section are merely rules of evidence enabling the levy of penalty in two different sets of circumstances and that penalty can be converted from Explanation (1) to Explanation (2) or Section 36(2)(c) of the Act? 3. By placing reliance upon the order passed by the sales tax officer on 5.8.1980, learned Additional Government Pleader for the applicant Shri S.M. Uike submits that it expressly refers to Section 33(3) of the said Act and also points out the actual figures of sales and purchases from books of account. Thereafter, the tax paid along with returns is compared with the tax worked out. As it is found to be less than 80% of the demand so worked out, presumption under Section 36(2)(c) Explanation I has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not mention any return filed by the assassee and, therefore, it has been passed by exercising best judgment and, hence, essentially falls under Section 33(5) of the said Act. 6. Learned Additional Government Pleader for the applicant Shri S.M. Uike invites our attention to the provisions of Section 36(2) as prevailing on the date when the returns were filed and as looked into by the later Division Bench of this Court while answering Sales Tax Reference No.17 of 2003. We need not go into those details because it is not in dispute that the provisions, prevailing on the date relevant for present adjudication, have been looked into in the case of Indoswe Engineers (P.) Ltd. mentioned supra. In the said reported judgment, the period of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce on which such dealer relies in support of his return or to produce such evidence as is specified in the notice. As against this, Section 33(5) of the said Act empowers the Commissioner to proceed to assess any dealer to the best of his judgment, if at any time within 8 years, the registered dealer has not furnished returns in respect of any period by prescribed date. 9. Arguments raised above, therefore, show an attempt on the part of the department to demonstrate that the returns filed belatedly can also be processed under Section 33(3) of the said Act and an effort on the part of the assessee to urge that the returns so filed cannot be subjected to Section 33(3) of the said Act at all. 10. In present facts, it is not in dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn was filed, perhaps the penalty under Explanation II of ₹ 88/was levied. 12. Perusal of order of the sales tax officer dated 5.8.1980 does not show that it is in exercise of best judgment that the assessment has been done. On the contrary, the entries in the books of account varying with returns filed are relied upon and then the assessment has been completed. 13. No provision has been pointed out to this Court which prohibits the department from looking into the returns which are filed belatedly i.e. after prescribed date. The provisions of Explanations I and II of Section 36(2)(c) of the said Act are no doubt mutually exclusive, but then that does mean that the provisions of Sections 33(3) and 33(5) of the said Act are also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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