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TMI Blog2020 (1) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts audited even though his turnover is over Rupees One Crore and not submitting the audit report with the return or turnover is provided under explanation (2) to Section 63A itself viz., imposition of penalty of ₹ 10,000/-, that too after giving a reasonable opportunity of hearing to the assessee concerned - Firstly, we find that no separate opportunity of hearing also was given by the assessing authority before passing the order imposing for penalty of ₹ 10,000/- in the impugned assessment order dated 04.06.2018. Be that as it may. Since the assessee has paid the said amount of penalty to the assessing authority vide communication dated 29.03.2019 along with a demand draft, which is placed on record, we are not inclined to q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable opportunity of hearing to the assessee, within a period of six months from the date of receipt of a copy of this order - petition allowed by way of remand. - Writ Appeal No.4085 of 2019 And C.M.P.No.25533 of 2019 - - - Dated:- 12-12-2019 - THE HON'BLE DR. JUSTICE VINEET KOTHARI AND THE HON'BLE MR. JUSTICE R. SURESH KUMAR For Appellant: Mr. V. Sundareswaran For Respondent: Mr. Mohammed Shafiq Special Government Pleader JUDGEMENT (Judgment of the Court was delivered by Dr. Vineet Kothari, J.) The appellant Assessee, aggrieved by the order of the learned Single Judge dated 05.07.2019 dismissing the writ petition filed by the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Single Judge, who has however dismissed the Writ Petition on the ground of availability of alternative remedyby way of departmental appeal to the assessee. He relied upon the decision of the Division Bench of this Court in the case of M/s.Nithra Furniture -vs- Assistant Commissioner (CT) decided in W.A.Nos.1148 and 1149 of 2015 dated 11.08.2015, in which the delayed filing of prescribed Audit Report in Form 'WW' was condoned by the Division Bench of this Court and the assessing authority was directed to pass a revised assessment order in that case. He therefore submitted that even though the power of the 'best judgment assessment' prescribed under Section 22(4) of the Act could be invoked by the assessing authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the parties, we are of the opinion that the present Writ Appeal is an exceptional case and deserves to be allowed, not because the assessing authority could not invoke his powers under Section 22(4) of the Act for the reason of not filing of the audit report, but because of the manner in which the 'best judgment assessment' has been passed by the assessing authority on 04.06.2018 for the assessment period 2016-17. The provisions of Section 63A of the TNVAT Act are quoted below for ready reference. 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not submitting the audit report with the return or turnover is provided under explanation (2) to Section 63A itself viz., imposition of penalty of ₹ 10,000/-, that too after giving a reasonable opportunity of hearing to the assessee concerned. Firstly, we find that no separate opportunity of hearing also was given by the assessing authority before passing the order imposing for penalty of ₹ 10,000/- in the impugned assessment order dated 04.06.2018. Be that as it may. Since the assessee has paid the said amount of penalty to the assessing authority vide communication dated 29.03.2019 along with a demand draft, which is placed on record, we are not inclined to quash the penalty on the said ground. 7. But our judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turnover by the Assessee is not the intent and purport of Section 22(4) of the Act, which empowers the authority, which has been quoted by the assessing authority in the impugned assessment order, to pass any order as he thinks fit. Therefore in our opinion, passing such 'best judgment assessment' making 50% enhancement of the declared turnover only for the reason that the assessee did not file the audit report, for which admittedly he suffered the penalty as prescribed by law, was not permissible. 9. We are conscious that the learned Single Judge has merely relegated the petitioner / appellant to the alternative remedy available to the assessee under the provisions of the Act itself, but as the settled legal positio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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