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TMI Blog2019 (7) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it comes out clearly that even while making the proposal, vide notice dated 01.02.2018, the respondent has made some approximation and has taken into account whatever material was available before him. Writ petitioner has not produced any contra material thereafter though the respondent had specifically asked for three different sets of documents, which were not produced - this Court is inclined to accept the submission that the instant case is distinguishable on facts from Tvl.Nithra Furniture case . In the instant case, it is nobody s case that while making best judgment assessment, it has been made arbitrarily. Respondent had added 50% of the returns taken out from the web report, but that is based on absence of documents, which were sought for under 12.03.2018 notice. In the absence of documents, the respondent has no option other than making approximation. Petition dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... t has done two things under this notice dated 01.02.2018. One is the respondent has called upon the writ petitioner dealer to file Form 'WW' in the prescribed form in accordance with Section 63A of TNVAT Act and Rule 16 of TNVAT Rules. For the purpose of clarity, this Court deems it appropriate to extract entire Section 63A of TNVAT Act and 16A of TNVAT Rules and the same read as follows: '63-A. Accounts to be audited in certain cases.- (1) Every registered dealer whose total turnover including zero-rate sale and sale in the course of inter-State trade or commerce as specified in Section 3 of the Central Sales Tax Act, 1956(Central Act 74 of 1956) in a year, exceeds one crore rupees, shall get his accounts in respect of that year, audited by an Accountant and submit a report of such audit in the prescribed Form, duly signed and verified by the Accountant, to the assessing authority, within such period as may be prescribed. Explanation.-For the purpose of this section "Accountant" means, a chartered accountant as defined in the Chartered Accountants Act, 1949 (Central Act 38 of 1949) or a cost accountant as defined in the Cost and Works Accountants Act, 1959(Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also been made clear that best judgment assessment is intended to be adopted. In other words, it has been made clear vide 01.02.2018 notice (though captioned 'NOTICE FOR NON RECEIPT OF FORM 'WW') that respondent intended to embark upon the exercise of best judgment assessment inter-alia under Section 22(4) of TNVAT Act. Not only has it been made clear that the respondent is going to embark upon the exercise of assessment by adopting best judgment method under Section 22(4) of TNVAT Act, but the proposal to add 50% of turnover, which has been taken out from website has also been communicated to the writ petitioner, but the writ petitioner neither responded nor participated in the personal hearing. 13. This is articulated in the impugned order and the relevant paragraph in the impugned order reads as follows: 'A notice was issued to the dealer, which was served on 09-02-2018 and a personal hearing notice was served to the dealer on 26-03-2018 through RPAD. But the dealer has not filed form WW to this office till date. Hence the monthly returns filed by the dealers are rejected as incorrect and incomplete and assess the dealer U/s 22(4) of the TNVAT' 2006.' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g as the estimate made by the Assessing Officer is not arbitrary, the same cannot be questioned. 21. In the instant case, unlike 'Tvl.Nithra Furniture case', best judgment assessment was not revisited solely because of Form 'WW' issue. This becomes clear from the personal hearing notice issued by the respondent dated 12.03.2018 captioned 'PERSONAL HEARING NOTICE'. A perusal of this notice reveals that the respondent has asked for atleast three documents with clarity and specificity. For the purpose of ease of reference, this Court deems it appropriate to extract the contents of this letter dated 12.03.2018, which read as follows: 'In continuation of this office best judgment assessment Notice dated 01.02.2018. You have not submitted the form WW to this office so far. Hence you are requested to appear before me along with the following documents. 1) ITC Adjustment Register as per Rule 6(9) of the TNVAT Rule 2007. 2) Stock Register for commodity wise under section 63(1) of the TNVAT Act 2006. 3) Transport documents under Section 17 of the TNVAT Act 2006. 2. You are therefore afforded a personal hearing to appear before the undersign to file your ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not possible for the Sales Tax Officer to find out precisely the turnover suppressed. He could only make an estimate of the suppressed turnover on the basis of the material before him. So long as the estimate made by him is not arbitrary and has nexus with facts discovered, the same cannot be questioned. In the very nature of things the estimate made may be an over-estimate or an underestimate. But that is no ground for interfering with his 'best-judgment'. It is true that the basis adopted by the officer should be relevant to the estimate made. The High Court was wrong in assuming that the assessing authority must have material before it to prove the exact turnover suppressed. If that is true, there is no question of 'best-judgment' assessment. The assessee cannot be permitted to take advantage of his own illegal acts. It was his duty to place all facts truthfully before the assessing authority. If he fails to do his duty, he cannot be allowed to call upon the assessing authority to prove conclusively what turnover, he had suppressed. That fact must be within his personal knowledge. Hence the burden of proving that fact is on him. No circumstance has been place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been made arbitrarily. Respondent had added 50% of the returns taken out from the web report, but that is based on absence of documents, which were sought for under 12.03.2018 notice. In the absence of documents, the respondent has no option other than making approximation. 27. Therefore, at the risk of repetition, it is made clear that this is not a case of non production of Form 'WW' alone. It is a case of not producing specific Registers and documents, which were sought for with clarity and specificity by the respondent. 28. Therefore, this Court is of the considered view that the aforesaid two notices dated 01.02.2018 and 12.03.2018 should be read along with the impugned order. Ideally, the two notices and the contents of the same should be read as an integral part and parcel of the impugned order. 29. If the two notices are read as an integral part and parcel of the impugned order, the position that emerges clearly is that best judgment assessment under Section 22(4) of TNVAT Act has been resorted to by the respondent as the same became inevitable. In this regard, it is relevant to notice that even in 'Tvl.Nithra Furniture case' (which has been held to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th of alternate remedy is a self imposed restraint which is not a rule of compulsion, but is a rule of discretion. In other words, it is not an absolute rule. Though it is not an absolute rule, Hon'ble Supreme Court in Satyawati Tandon Case [United Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110] and K.C.Mathew case [Authorized Officer, State Bank of Travancore Vs. Mathew K.C. reported in (2018) 3 SCC 85]. To be noted, Satyawati Tondon principle was reiterated in latter of the two i.e., K.C.Mathew. In Satyawati Tondon case and K.C.Mathew regarding rule of alternate remedy, the principle that such a rule, though a rule of discretion and not a rule of compulsion, should be exercised with greater rigour in fiscal law statutes has been laid down. More importantly, in Satyawati Tondon case, Hon'ble Supreme Court held that such a rule has to be applied with utmost rigour when it comes to cases involving taxes, cess, fees etc., In other words, when it comes to fiscal statutes, these rules have to be applied with greater rigour and it is to be applied very strictly with regard to recovery of taxes, CESS, fess etc., Relevant paragraph in K.C.Mathew case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with utmost rigour when it comes to fiscal statutes notwithstanding it being a rule of discretion. If the writ petitioner chooses to avail alternate remedy by filing an appeal, which this Court is informed lies to the jurisdictional Appellate Deputy Commissioner under Section 51 of TNVAT Act, it is open to the writ petitioner to seek condonation of delay in filing alternate remedy and also seek exclusion of time spent in the instant writ petition inter-alia by relying on Section 14 of Limitation Act. If the writ petitioner chooses to avail the alternate remedy and also makes such prayers for condonation and exclusion under Section 14 of Limitation Act, such prayers shall be dealt with and decided by the Appellate authority on their own merits. 35. Most importantly, it has become necessary for this Court to deal with certain aspects of the matter on merits. Therefore, if the writ petitioner chooses to avail alternate remedy, it will be open to the appellate authority to deal with the matter afresh, untrammeled by observations made by this Court in this order as such observations made by this Court are for the limited purpose of disposal of instant writ petition. This is owing to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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