TMI Blog1994 (10) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral Sales Tax Act, 1959 (hereinafter referred to as "the Act") to the extent of Rs. 7,298. On appeal, the Appellate Assistant Commissioner granted a relief of tax of Rs. 400 for the turnover of Rs. 800 and reduced the penalty from Rs. 7,298 to Rs. 4,865. Aggrieved, the assessee filed a second appeal before the Appellate Tribunal, challenging the turnover for Rs. 97,300 which is taxable at 5 per cent and the penalty of Rs. 4,865 sustained by the Appellate Assistant Commissioner. 2.. The place of business was inspected on March 29, 1985, by the enforcing officers. A verification of the actual stock with the book stock, revealed a deficit of 25 kgs. of jaggery. The officers secured a triplicate copy bought note numbered as 36 dated March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples of law, in the matter of making best judgment assessment. 4.. On the other hand, Mr. A.K. Gopinath, learned Government Advocate, submitted that the assessee has already filed a return disclosing the turnover, in accordance with the account books maintained by him, that on inspection, it was found out that the assessee has suppressed certain sales, that the inspection revealed that the assessee had certain bills for purchasing jaggery outside the books of account, that the enforcing authorities have recovered a bought note No. 36 dated March 28, 1985, which would go to show that jaggery was purchased for a sum of Rs. 2,700 and that since the assessee suppressed the purchase relating to 35 bills, the assessing officer estimated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as determined by the authorities below at Rs. 97,200. Accordingly, we are not inclined to interfere with the findings given by the Tribunal, on this point. 6.. What remains to be considered in this revision, is the penalty levied under section 12(3) of the Act. Originally, the penalty was levied at Rs. 7,298. The Appellate Assistant Commissioner, on appeal, reduced the penalty to Rs. 4,865. On further appeal, the Tribunal, reduced the penalty to Rs. 2,432. The assessee is in revision before this Court. The learned counsel for the assessee submitted that simply because addition was made on suppressed turnover, penalty is not exigible under section 12(3) of the Act. According to the learned counsel, no definite finding was given by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is exigible under section 12(3) of the Act. In S.G. Jayaraj Nadar Sons v. State of Madras [1968] 21 STC 180 this Court, while considering the provisions of section 12(3) of the Madras General Sales Tax Act, has held "that an assessment may be partly under sub-section (1) and partly under sub-section (2), where part of the assessment is not based on estimate or best judgment, it is clearly not within the purview of sub-section (2) and, therefore, in respect of such part of the assessment, there will be a bar to the levy of penalty under sub-section (3)". The abovementioned decision has been confirmed by the Supreme Court in State of Madras v. S.G. Jayaraj Nadar Sons [1971] 28 STC 700; AIR 1971 SC 2405, wherein while considering the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing authority that there was any wilful suppression of the assessable turnover. The Tribunal was therefore right in its view that the Deputy Commissioner exceeded the power to impose penalty." Similarly, a Full Bench of this Court, had an occasion to consider the provisions of section 12(3) of the Act, in Kathiresan Yam Stores v. State of Tamil Nadu [1978] 42 STC 121; AIR 1978 Mad. 322 and held as under: "............. It cannot be said that the process of imposition of penalty is almost an automatic one whenever an estimate is made when it is found that no return has been filed or that the return filed did not indicate the turnover to the extent fixed on the basis of the best judgment basis. All the circumstances of the case will ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
