9911796707
TMI Blog2017 (1) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner. The impugned order has also been challenged on the ground that without forming any "opinion" by the learned assessing authority in respect of turnover escaped from the assessment. Facts: The factual matrix leading to the case of the petitioner is that the petitioner carries on business in preparation and selling of vada, piaji, aluchop, mixture and sweets (rasgola) being a registered dealer under the Act. The petitioner used to maintain books of account in course of the business basing upon which statutory returns under the statute are filed before the opposite party. The petitioner has filed the return but no order of assessment under section 39 of the Act was passed. But a notice in form VAT-307 was served on the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, perverse and against the principles of natural justice. He further submitted that the initiation of the proceeding under section 43 of the Act without making the petitioner being assessed under sections 39, 40, 42 or 44 of the Act and as such the opposite-party lacks jurisdiction to pass any order. It is also submitted that the opposite party has never formed any opinion as to which part of the turnover of the petitioner is escaped assessment and in absence of his opinion to be recorded in writing, initiation of proceeding under section 43 of the Act and resultant notices there under are not tenable in law, being void and without jurisdiction. He further submitted that in Indure Limited v. Commissioner of Sales Tax reported in [2006] 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production of the books of account the opposite party was not satisfied with the contents of the books of account maintained towards sale and purchase and as such came to hold best judgment assessment procedure. He fairly submitted that the assumption made by the opposite party about the GTO and TTO is on his knowledge but there is no any supporting material to prove his knowledge and belief. He also submitted that the assessment under section 43(1)(a) of the Act has been made but learned counsel for the Revenue could not explain which item has escaped assessment. However, he fairly submitted to quash the order of assessment and remit back the matter to the opposite party for reassessment according to law. Now the question arises whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly value of five per cent. goods comes to Rs. 27,25,275 and 13.5 per cent goods valued Rs. 24,16,725. Likewise for the year 2014-15 out of total turnover of Rs. 51,75,000, value of five per cent. goods calculates to Rs. 25,09,875,00 (48.5 per cent. of the turnover) and value of 13.5 per cent. goods comes to Rs. 26,65,125 (51.5 per cent. of total turnover). This proportion of different tax rate goods are calculated on the basis of different tax rate goods disclosed in the returns for the concerned financial year. Thus for the financial years 2013-14 and 14-15 taken together, the GTO of the dealer is determined as Rs. 1,03,50,000 and same is also treated as TTO as no deduction is admissible. Tax at five per cent. of goods valued Rs. 52,68,15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Though there is an element of guess-work in a 'best judgment assessment', it shall not be a wild one, but shall have a reasonable nexus to the available material and the circumstances of each case. . . ." With due respect, it is found that the power of making a best judgment assessment is to be exercised within the frame work of settled and invariable principles of justice. The judgment should not depend upon the arbitrary caprice of a quasi-judicial authority and should be based on true wisdom and meet the legal principle. It has also been laid down in the aforesaid decision that although the best judgment revolves around the element of guess work but the same cannot be a wild one, it must have a reasonable nexus to the availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon by the opposite party to come to a conclusion that average business of the petitioner comes to Rs. 15,000. Moreover, when the petitioner is engaged in selling of some low cost tiffin, and some rasgola at no stretch of imagination the daily business would reach to such an amount. It is a fact that he has engaged six persons including himself and his brother. Be that, as it may, the best judgment procedure adopted by the opposite party does not meet the requirement of law as propounded by the honourable apex court. Consequently, we are of the view that such impugned order is illegal, perverse and based on caprices and whims of the opposite party for which the same is liable to be quashed. In view of the aforesaid analysis, we are o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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