TMI Blog1984 (3) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the petitioner did not file any purchase tax return. During the course of proceedings for assessment, a few memorandums were sent to the petitioner in these words: "Your case for the year 1968-69 was fixed for assessment before the undersigned on 26th August, 1970. None appeared on the said date. Now you are directed to produce your account books on 1st September, 1970, at 9 A.M. at Ludhiana. In case of failure, case will be decided ex Parte on merits. No adjournment application will be entertained. Sd/-.......................... Assessing Authority, Ludhiana." Thereafter on 14th September, 1976, an assessment was framed by the Assessing Authority vide order, annexure P-1, on a taxable turnover which included sales tax and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 years after the expiry of the period culminating on 31st March, 1969. The said provision specifically postulates that proceedings to assess the petitioner to the best of the judgment of the Assessing Authority can only be taken after the dealer has been given a reasonable opportunity of being heard and as held by the Supreme Court in Madan Lal Arora v. Excise and Taxation Officer, Amritsar [1961] 12 STC 387 (SC) that a notice need clearly specify that the authority needed to proceed against the dealer to the best of his judgment consciously. Concededly, the petitioner was not served with statutory notice in form S.T. XIV. A bare reading of the said form discloses that it bears options. Option (a) covers a dealer under section 11(5) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omply with the notice and thereafter the Assessing Authority can proceed to frame best judgment assessment. It is patent from the memorandum sent to the petitioner that it was required to produce account books failing which it was to be proceeded against ex parte. Concededly, in none of the memorandums it was ever stated that the Assessing Authority shall be proceeding to the best of its judgment on the failure of the assessee to comply with the terms of the memorandum. As is well-known, a best judgment assessment is an assessment of the Assessing Authority and of none other, without the least aid or persuasion from the assessee. What the law requires is that some conscious act must be taken before the expiry of the period of 5 years which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Taxation Commissioner, Ludhiana [1984] 57 STC 308 (C.W.P. No. 2901 of 1982)] decided on 15th March, 1984, and what could not be done by the Assessing Authority could not be permitted to be done in appeal by the Deputy Excise and Taxation Commissioner. The same principle applies to the Income-tax Tribunal. Thus the view of all the authorities under the Act in framing best judgment assessment against the petitioner appears to me without jurisdiction and thus the orders, so far as they relate to framing of such assessment with regard to purchase tax are concerned, are hereby quashed in relation to the impugned orders. So far as the question of penalty is concerned that too, to my mind, is a by-product of best judgment assessment for it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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