TMI Blog1973 (1) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessment was made. The said best judgment assessment resulted in an addition of a sum of Rs. 7,60,500 to the turnover of Rs. 9,99,449.46 returned by the assessee. At the time of making the best judgment assessment under section 12(2), the assessing authority had not passed any order under section 12(3). Even in the appeal filed before the Appellate Assistant Commissioner by the assessee, the Appellate Assistant Commissioner did not consider the question of penalty leviable under section 12(3). After the appellate authority passed the order granting a relief on a turnover of Rs. 5,000, the Board of Revenue, in exercise of its suo motu powers, called for the records of both the assessing authority as well as the appellate authority, and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed without jurisdiction. This court affirmed the said view of the Tribunal expressing that the whole scheme of section 12 suggested that the levy of penalty on the grounds comprehended by sub-section (3) of section 12 is part of the assessment proceedings under sub-section (2), that, therefore, the penalty that is contemplated by sub-section (3) depends on and follows a finding as to the incompleteness or incorrectness of the return submitted and forms part of the proceedings resulting in the best judgment assessment, and that there could be no independent enquiry contemplated by sub-section (3) for purposes of levy of penalty alone. It was, therefore, held in that case that the succeeding assessing authority would have no jurisdiction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile making the assessment. This court, therefore, held that the order of the Board of Revenue setting aside the order of assessment is not legal. As already stated, the assessing authority has not purported to exercise his power under section 12(3) while making the assessment under section 12(2). Though the circumstances of this case may call for the imposition of penalty under section 12(3), the assessing authority has not in fact chosen to invoke his power under section 12(3). What the Board has done is to exercise that power, which the assessing authority should have exercised, but, actually did not exercise. According to the learned Government Pleader, the Board can pass any order in revision which the assessing authority should have p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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