TMI Blog1970 (10) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... mption from sales tax in respect of certain transactions in the nature of inter-State sales and sales to outside people in the course of export. 2.. The petitioner was served with a notice dated 24th September, 1962, (respondents' annexure 1), for submitting returns for the period from 21st October, 1960, to 8th November, 1961. It is not disputed by the learned counsel for the petitioner that the returns were submitted beyond the prescribed date. Thereafter the petitioner went on filing applications before the assessing authority (respondent No. 1) for adjournment of the case sine die and for an opportunity to produce certain documents which had been seized from him by the Central excise authorities probably in connection with breach of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irection to the assessing authority to pass a fresh order of assessment after giving the petitioner a proper opportunity to produce the necessary evidence. But it appears that the assessing authority purported to pass the order of best judgment assessment on the wrong premises that the petitioner was unable to furnish any proof in respect of the exemptions claimed by him. In the return filed in this court also a similar vague assertion has been made. But the fact is not disputed that the account books and other documents relating to the assessment period are still under the custody of the Central excise authorities and, therefore, the petitioner cannot produce them without the assistance of the assessing authority. 4.. Such power of produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fails to comply with the requirements of a notice issued under sub-section (1). But mere late filing of a return can, in our opinion, not be visited with the drastic penalty of altogether preventing the assessee from furnishing any evidence whatsoever. Of course, for such late filing of returns, the requisite penalty can be imposed by the assessing authorities. But once an assessee is permitted to file a return, although late, that becomes a part of the record and thereafter the assessing authority has to pass an order of assessment on whatever material there might be or on whatever material the assessee might be able to produce. Therefore, we do not think that the drastic penalty of altogether preventing the assessee from furnishing any ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g at a fair and proper estimate of the taxable turnover of the dealer." This rule clearly contemplates that the assessing authority has to pass an order of assessment after considering the surrounding circumstances and other matters that may be of assistance in order to arrive at a fair and proper estimate of the taxable turnover. Of course, if the default of the assessee be in respect of furnishing evidence, then also it may be open to the assessing authority to pass an ex parte best judgment assessment. But the necessary condition is that the assessee himself must be in default of furnishing the requisite evidence. In the instant case the default has not been on the part of the petitioner, but has been on account of facts which are not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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