TMI Blog1983 (2) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts were not produced by the assessees as called upon. Thereafter, the assessing authority passed final assessment order of best judgment assessment by fixing the taxable turnover of Rs. 81,005 with reference to the coal purchases made during the year 1968-69 and also passed final orders to best judgment on a taxable turnover of Rs. 1,18,388 with reference to the coal purchases for the year 1969-70. The assessing officer also levied penalty of Rs. 3,645 for the year 1968-69 and Rs. 5,326 for the year 1969-70. The assessees filed appeals only against the levy of penalty and not against the assessment before the the Appellate Assistant Commissioner. The Appellate Assistant Commissioner felt that the levy of penalty was due to the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment with reference to the coal purchases made by the assessees during the relevant years. Even in answer to the pre-assessment notice issued by the assessing authority, the assessees did not submit any return indicating their sales turnover. Nor did they produce the account books as called upon by the assessing authority. From these facts, we do not see how the Appellate Tribunal can say that there is no wilful non-disclosure by the assessees. The facts stated above will clearly indicate that the assessees purposely did not register themselves as dealers and did not submit any return as contemplated in section 12(1) of the Act; nor did they produce the account books as called upon by the assessing authority to enable him to make an ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, wherever the best judgment assessments were made under section 12(2) of the Act, penalty is leviable under sub-section (3). As already seen, the best judgment assessment can be made under two contingencies: (i) if no return is submitted by the dealer within the prescribed period and (ii) if the return submitted is found to be incomplete and incorrect. In this case, the first contingency has arisen. Therefore, the assessing authority is entitled to invoke section 12(3) of the Act and levy penalty while making best judgment assessment under subsection (2). The decisions referred to by the Appellate Tribunal have no application to the facts of this case. In State of Madras v. M.S.K. Shahul Hameed [1967] 19 STC 288, a return was submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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