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TMI Blog2019 (5) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... LLO SALINE PHARMACEUTICALS VERSUS COMMERCIAL TAX OFFICER (FAC) AND OTHERS [ 2001 (10) TMI 1100 - MADRAS HIGH COURT] held that penalty cannot be imposed unless return is not filed or the filed return is rejected and, thereafter, assessment is made on best judgment basis. Neither of these requirements were fulfilled in the instant case. Petition allowed - decided in favor of petitioner. X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed period, or if the return submitted by him appears to the assessing authority to be incomplete or incorrect, the assessing authority shall, after making such enquiry as it may consider necessary, assess the dealer to the best of its judgement [subject to such conditions as may be prescribed]: Provided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of proving the correctness or completeness of any return submitted by him. Section 12(3) In addition to the tax assessed [under sub-section (1) or (2),] the assessing authority shall, in the same order of assessment passed [under sub-section (1) or (2) or by a separate order, direct the dealer to pay by way of penalty, a sum - (a) whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference of the tax assessed and the tax paid as per the return, if the tax paid as per the return, falls short of the tax assessed on final assessment by more than seventy-five per cent;" 4.In order to substantiate his submission, the learned counsel for the Petitioner invited the attention of this Court to the decision of the Hon'ble Division Bench of this Court in APPOLLO SALINE PHARMACEUTICALS (P) LTD., V. COMMERCIAL TAX OFFICER (FAC) AND OTHERS, 125 STC 2002 wherein at paragragh-5, it was held as follows: "5. The Supreme Court in the case of State of Madras v. Jayaraj Nadar & Sons after extracting Section 12(2) of the Tamil Nadu General Sales Tax Act, 1959 which remains in the same form even now, observed thus : "The quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king a best judgment assessment." 5.Accordingly, the learned counsel for the Petitioner submitted that the instant case is squarely covered by the judgment of the Division Bench of this Court in the above mentioned case and that in view of the fact that the return filed by the Petitioner was not rejected by the Assessing Officer, penalty cannot be imposed under Section 12(3) read with 12(2) of the TNGST Act. 6.In response, the learned counsel for the Respondent pointed out that before imposing penalty by impugned order dated 26.06.2006, a notice dated 14.05.2006 was issued to the Petitioner calling for objections, if any, and that no objection was received from the Petitioner. 7.By way rejoinder submissions, the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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