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2011 (12) TMI 460 - HC - VAT and Sales TaxBest judgment assessment sustained by Tribunal to the extent of ₹ 16.50 lakhs - whether the Appellate Tribunal was justified in law in making adhoc addition of 50 per cent of the alleged actual suppression without having due regard to the fact that the inspection of the petitioner's shop by the authorities was at the fag end of the year? Whether the Appellate Tribunal was justified in law in sustaining the maximum penalty calculated on the tax due on the alleged actual suppression as estimated by the assessing authority ignoring the ratio of various decisions of the High Court on the issue of penalty? Held that:- The impugned assessment is on estimation. Taking note of the fact that in respect of one other jeweller in the area concerned, as it is reported by the learned Special Government Pleader, the turnover was only ₹ 4 lakhs, we are of the view that in the interest of justice, the turnover of the assessee could be fixed at ₹ 5 lakhs. Inasmuch the impugned order of the Sales Tax Appellate Tribunal stands modified to the extent that the taxable turnover of the assessee could be fixed ₹ 5,00,000, and out of the said sum of ₹ 5,00,000, ₹ 2,00,000 (rupees two lakhs) shall be assessed at one per cent and the remaining ₹ 3,00,000 (rupees three lakhs) shall be assessed at three per cent. Since the assessee has already paid a sum of ₹ 19,763 towards tax and a sum of ₹ 715 towards surcharge, the assessee is entitled for the refund of the excess amount, if any, paid by it. The assessing officer shall calculate accordingly and refund the excess amount, if any, to the assessee to which it is entitled, without any interest. Since the entire assessment is on estimate, there is no question of imposing penalty. In such view of the matter, the penalty portion of the impugned order shall stand set aside.
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