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TMI Blog2018 (5) TMI 1284X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is entitled to invoke explanations (i) and (ii) to Section 12(3)(b) of the Act. Tax Case Revision Petition is dismissed. - Tax Case No. 107 of 2018 - - - Dated:- 19-4-2018 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Petitioner : Mr. V. Hari Babu Addl. Govt. Pleader (Taxes) ORDER ( Order of the Court was made by S. Manikumar , J ) Instant Tax Case (Revision) is filed against the order of the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai, dated 27/8/1991, made in T.A.No.111 of 1991. 2. Facts as deduced from the material on record are that Tvl. Chakra Marketing Associates, is a dealer in potato chips, soaps and cleaning powder, etc. Assessing Officer, has assessed the respondent on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Appellate Assistant Commissioner was justified in rejecting the claim of the appellants. It is seen from the appeal memorandum, that that the appellant has not filled up the Form III properly. As per this memorandum, the disputed turnover is only ₹ 27,222/- at 5% and tax due in the turnover is ₹ 1,361/-. In the column of any other relief claimed a sum of ₹ 68.05 in respect of surcharge was shown. 7. Since the ball point pen refills are taxable at multipoint rate of tax, they are not eligible for any exemption. 8. Under these circumstances, we see no reason to interfere with the order of the learned Appellate Assistant Commissioner. 9. In the end, the appeal is dismissed. 10. Regarding enhancement pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the view that since the appellant has recorded the turnover in his books of accounts, no penalty could be levied under Section 12 (5) (iii). 6. Section 12(3)(b) of the Act deals with, submission of incorrect or incomplete return and for the purpose of levy of penalty, under Clause (b), the tax assessed on the following kinds of turnover shall be deducted from the tax assessed on final assessment, (i) twenty-five per cent of the difference of the tax assessed and the tax paid as per return, if the tax paid as per the return falls short of the tax assessed on final assessment by not more than five per cent; (i-a) fifty per cent of the difference of the tax assessed and the tax paid as per return, if the tax paid as per the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o return has been submitted by the dealer under sub-section (1) within the prescribed period, and (ii). If the return submitted by him appears to be incomplete or incorrect. Sub-Section (3) empowers the assessing authority to levy the penalty only when it makes an assessment under sub-Section (2). In other words, when the assessing authority has made the assessment to the best of its judgment, it can levy a penalty. It is well known that the best judgment assessment has to be on an estimate which the assessing authority has to make not capriciously but on settled and recognised principles of justice. An element of guess-work is bound to be present in best judgment assessment but it must have a reasonable nexus to the available material and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question, as to whether, levy of penalty under Section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959, was justifiable, particularly, when there was no suppression pointed out by the Revenue that the Claim of the assessee related only to concessional rate of tax. This Court held as follows: 8. .......Thus when the turnover assessed under the assessment order is drawn from the books of accounts itself, and there being no reference to any specific concealment of the turnover in the accounts, the question of invoking section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 would not arise. The Explanation to section 12(3)(b) of the Act specifies the turnover which merited to be excluded for the purpose of levy of penalty, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of assessment, turnover has been recorded as per the books of accounts, verified by the department and in such circumstances, suppression cannot be attributed. Transaction giving rise to taxable turnover, has been categorically declared by the assessee as composite works contract and at the concessional rate of 4%, tax has been paid. In such circumstances, it cannot be contended that it is a deliberate and wilful non-disclosure of turnover, in the return and thus rightly proceeded, under Section 12 (3) (b) of the Act, which deals with submission of incorrect or incomplete return. Though penalty is leviable under the provisions of the Act, while exercising discretion, the assessing officer is required to take note of the bona fid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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