TMI Blog2004 (10) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- under the Central Sales Tax Act. The petitioner during that year effected consignment sales to the tune of Rs.8,30,000/-, but it did not report the same in the monthly statement since it is not liable to tax. But, the second respondent assessed the said consignment sales turnover and levied tax on that. The petitioner's taxable turnover for the year 1994-95 was determined at Rs.10,10,000/- taxable at 2% as against the reported taxable turnover of Rs.1,80,000/- by Order dated 30.10.1996. In view of the assessment based on the 'Best Assessment', there is a difference in tax to the tune of Rs.16,600/- between the tax assessed and the tax paid by the petitioner. For the said difference, the respondent levied penalty of Rs.24,900/- under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the penalty cannot be levied. Hence, the respondent has no jurisdiction or authority to levy penalty for the revised assessment order. Hence, the revised order of assessment is illegal as also the penalty. An appeal against that order ought to have been filed on or before 6.2.1997. But the petitioner was on a mistaken impression that since the appeal has already been filed against the original order of assessment and the same is pending, it was not necessary to file an appeal against the impugned order. On 9.7.1997, the respondent sent his agent for collecting the tax and penalty due under the impugned order, the petitioner contacted his Advocate for necessary action. There is no power for the Appellate Authority to condone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In fact he has stated the reasons or the circumstances for non-filing of the appeal against the revised order of assessment. Since the authorities have no power to condone the delay in filing the appeal, the present writ petition has been filed, as there is no other remedy. The learned counsel for the petitioner also submitted that the revised order of assessment itself is an illegal order not supported by any valid law, hence there is no prohibition for filing the writ petition challenging the same. This argument of the counsel for the petitioner is acceptable. For the reasons that the validity of the order is challenged, and also that there is no other remedy available, the writ petition is maintainable. 8. In this case, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d prior to 1.7.2002, the penalty can be imposed only if assessment is made under Section 12(2). No penalty can be made when assessment is made under sub-Section (1) of Section 12. In this case, admittedly, the assessment is made on the return submitted prior to 1.7.2002. Therefore, when the exemption is claimed bona fide and that was rejected, it is an assessment made under sub-Section (1). Therefore, on the date when the return has been filed, the penalty cannot be levied under Section 12(3). In this case, penalty has been levied even for assessment of the tax on the basis of return filed, which is not a assessment by 'Best judgment' under Section 12(2). Therefore, the imposition of penalty is not legal. Hence, the impugned order imposing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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