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TMI Blog2020 (3) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... ds given above for imposition of additional tax on the Assessee did not result in Best Judgment Assessment against the Assessee and it cannot amount to filing of incorrect or incomplete return by the Assessee. On debatable issues, even if the addition in taxable turnover is made by the Assessing Officer, it does not amount to Best Judgment Assessment, which can be passed, only if the regular books of accounts and the return filed by the Assessee are rejected for given reasons. Therefore, the learned Tribunal has erred in relying upon the insertion of the Explanation in Section 12(3) of the Act at a later date with effect from 01.04.1996 to uphold such penalty in the year 1993-94. Thus, the Explanation to Section 12(3) does not get attrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that until the insertion of the 'Explanation' under Section 12(3)(b) of the Tamil Nadu General Sales Tax Act, all the types of 'balances' in tax payable derived in an assessment order would be necessarily attract a penalty, in accordance with the sliding scale, as provided in Section 12(3)(b) of the Tamil Nadu General Sales Tax Act. The legal position that the delaying of the taxes otherwise normally and legally payable to the State along with a dealer's monthly returns would attract penalty is well settled in the case law reported in 125 STC 107 (Chennai Textile Chemicals Private Ltd., -Vs- State of Tamil Nadu and Others). The Hon'ble High Court of Chennai has observed in the above case as follows. ..... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only with reference to the turnover sought to have been suppressed. So far as the State is concerned, the loss has to be, and in our view could be, legitimately measured with reference to the tax sought to have been or attempted to have been evaded and the graded scales of penalty fixed with reference to such tax attempted to be evaded is not only permissible for the Legislature to enact as a matter of policy, but the same, in our view, is found to be just and reasonable and we do not really find any hostile discrimination or arbitrariness or unreasonableness in the same as vaguely claimed for the petitioners on mere hypothetical basis.... 15) Since the assessee failed to file returns declaring correct turnover at the correct rate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty has been sustained by the Tribunal are, that the assessing authority imposed additional tax on the sales made by the Assessee, which were not supported by declaration in 'C' Forms and secondly on the Cash Incentives received by the Assessee on the Exports made by it was held to be part of taxable turnover, which was not so. The imposition of additional tax, however, has not been done as a result of 'Best Judgment Assessment' under Section 12(2) of the TNGST Act, upon which only the penalty under Section 12(3)(b) of the Act is attracted and therefore, the learned Tribunal has erred in upholding the imposition of the said penalty. 3. Per contra, Mr.Mohammed Shaffiq, learned Special Government Pleader (Taxes) supported ..... X X X X Extracts X X X X X X X X Extracts X X X X
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