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TMI Blog2017 (7) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... ly indicates that the Assessing Officer found fault with the petitioner for failure to produce documents before the Enforcement Wing or before her. Thus, considering the facts and circumstances of the case and the issue as to whether the product sold by the petitioner is to be taxed at 14.5% or 2% is required to be decided, we are of the view that the matter can be remanded to the Assessing Officer for fresh consideration subject to stringent conditions - appeal allowed by way of remand. - W.A.(MD) Nos.601 of 2017 - - - Dated:- 20-6-2017 - T. S. Sivagnanam And P. Velmurugan, JJ. W.A.(MD) Nos.601 of 2017 , 602, 603, 604, 605 606 of 2017, C.M.P.(MD) Nos.4987, 4988, 4989, 4990, 4991, 4992, 4993, 4994, 4995, 4996 4997 of 2017, W.P.(MD) Nos.4628, 4629, 4630, 4631, 4632 4633 of 2017, 3705, 3706, 3707, 3708, 3709, 3710, 3711, 3712, 3713, 3714, 3715 3716 of 2017, W.A.(MD) No.601 of 2017, W.P.(MD) No.4628 of 2017 For the Appellant : Mrs. R. Hemalatha For the Respondent : Mrs. R. Hemalatha JUDGMENT [ Judgment of the Court by T. S. Sivagnanam, J. ] These writ appeals are directed against the interim order granted in W.P.(MD) Nos.4628 to 4633 of 2017, fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayam Circle, Salem, reported in (2006) 146 STC 642 (Mad). 8. Further, it is submitted that the respondent has made assessment on the basis of one day collection. In State of Tamil Nadu vs. New Kamaliya Hotel, reported in (2000) 147 STC 111 (Mad), it has been held that mere one day sales could not be attributed to estimate the whole year without considering the festival season, rainy season and other natural calamities. On the above grounds, the learned counsel seeks for setting aside the orders of assessment and remanding the matter for fresh consideration. 9. The learned Additional Government Pleader appearing for the respondent, while seeking to sustain the impugned assessment orders, contended that the Assessing Officer has analyzed the factual position in detail, applied her mind independently and has passed the assessment orders and if the petitioner is aggrieved, they will have to prefer appeal before the Appellate Authority and the writ petitions are not maintainable. Further, it is submitted that in spite of sufficient opportunity having been granted to the petitioner to submit their objections and produce documents, they have failed to produce the documents and accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner on 07.11.2016 and additional reply on 14.11.2016. Personal hearing was fixed on 22.11.2016, but the proprietor did not attend the same citing health problem and the personal hearing was adjourned and notice was issued on 05.12.2016 and once again the petitioner sought for time. Therefore, the Assessing Officer was of the opinion that the petitioner has been dragging on the matter and therefore, proceeded to complete the assessment, after analyzing the stand taken by the petitioner in their interim reply and completed the assessment. 14. On a perusal of the assessment orders, we find that the Assessing Officer was largely guided by the observations contained in the proposals of the Enforcement Group and the stand taken by the petitioner before the Enforcement Officials. Further, the Assessing Officer held that the dealer had not submitted any documents such as day-book, ledger, profit and loss account, trading account, bank transaction details, at the time of inspection by the Enforcement Wing and in the absence of any records, the turnover had to be assessed based on the sales made from 17.11.2015 to 19.11.2015, which were recorded at the time of inspection. Ultimately, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s out the findings of the Assessing Officer and on a perusal of the said finding, we are able to see that what weighed in the mind of the Assessing Officer is entirely the report of the Enforcement Wing. As pointed out earlier, the report of the Enforcement Wing cannot be the sole basis for completing the assessment and if it is so, the Assessing Officer has no role to play and obviously that is not the intention of the scheme of the Act. It is no doubt true that the petitioner is guilty of non- production of books and documents in spite of reasonable time having been granted to them. It is to be noted that the Assessing Officer is not expected to endlessly wait for the dealer to appear before the Officer and produce documents and the provisions of the Act only provides for reasonable opportunity to the dealer. Assuming the dealer fails to appear, the Assessing Officer is entitled to complete the assessment on the available materials or in other words, make a best of judgment assessment, even in such cases, the Assessing Officer has to record specific reasons as to why the stand taken by the dealer in the reply to the notice is not tenable and the Assessing Officer cannot solely re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree weeks period stipulated in Clauses (i) and (ii) above. (v) On receipt of the reply, the Assessing Officer shall fix a date for personal hearing and direct the petitioner to produce all books of accounts and documents and the petitioner shall appear before the Assessing Officer on the stated date and time without seeking for any adjournment and make their oral submissions and produce all documents in support of their stand. (vi) On conclusion of the personal hearing, the Assessing Officer shall complete the assessment by passing fresh orders on merits and in accordance with law, within a period of three weeks from the date on which the personal hearing is concluded. (vii) The Assessing Officer shall not adjudicate the dispute, which is now pending before this Court in W.P.(MD) Nos.6668 and 6669 of 2015. (viii) If the petitioner fails to comply with the conditions imposed in Clauses (i) and (ii) within the time permitted, the benefit of this Judgment would not enure to them and all the writ petitions would stand automatically dismissed and the assessment orders shall stand revived and the Assessing Officer is directed to recover the tax, penalty and interest levied / imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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