TMI Blog1998 (12) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... the said business was registered only after the date of inspection by getting certificates both under the Tamil Nadu General Sales Tax Act, 1959 and Central Sales Tax Act, 1956. After verification of the abovesaid records, the assessing officer determined the sales covered by valid C forms effected after date of registration at Rs. 1,59,233 taxable at 4 per cent. Sales effected prior to the date of registration of the business covered by C form, but not accepted were determined at Rs. 4,37,977, while the sales effected against C forms after the date of registration but not covered by C forms were determined at Rs. 30,740. Sales covered by defective C forms were determined at Rs. 20,802. A difference of Rs. 628 was noticed in the C forms. Sales effected without C forms were determined at Rs. 51,543. Thus, in all, total sales not covered by C forms taxable at 12 per cent were determined at Rs. 5,41,690 and the total and taxable turnover for the assessment year 1991-92 was proposed at Rs. 7,00,923. The assessing officer proposed to impose tax of Rs. 58,696 at 12 per cent on the alleged suppressed turnover of Rs. 4,89,135 and penalty of Rs. 88,044 under section 12(3) of the Tamil Nadu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamine and allow concessional rate of tax at 3 per cent if the forms are valid. The appellate authority had also taken note of the returns and books produced by the assessee before the assessing officer, and had accepted the same and held that the levy of penalty under section 12(3) of the Act, cannot be sustained since there was no assessment under section 12(2) of the Act and accordingly set aside the levy of penalty of Rs. 1,29,627 under section 12(3) of the Act. Since the assessee had submitted the monthly returns form A1 for the months of April, 1991 to August, 1991 in November and December, 1991, levy of penalty under section 12(5)(ii) of the Act was held sustainable by the appellate authority. But, taking into consideration the payment of tax of Rs. 1,73,254 on January 8, 1991 itself for the month of November, 1991 and also payment of tax of Rs. 6,77,000 at the time of inspection on September 18, 1991, the appellate authority set aside the levy of penalty of Rs. 7,362 levied under section 12(5)(ii) of the Act and remitted the same back to the assessing officer with a direction to verify the payment details and the tax paid in advance to give necessary relief to the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this appeal. 7.. We have carefully considered the submissions made by both the sides. The fact remains that the assessee was a registered dealer on the file of the Commercial Tax Officer, Alandur Assessment Circle, from the year 1982-83 under the Act as well as under the Central Sales Tax Act. Admittedly Alandur Circle was bifurcated during the year 1986 and a new assessment circle by name Porur Assessment Circle was formed. The assessee came under the jurisdiction of Commercial Tax Officer, Ambattur Assessment Circle, in the assessment year 1987-88 and thereafter under the new Assessment Circle formed at Koyambedu. The assessee who had registered its dealership under both the abovesaid Acts up to 1987-88, had not renewed the same under the said Acts for four years from 1988-89 to 1991-92 for carrying on its abovesaid business and this was found out by the Enforcement Wing Officers during the course of inspection of the place of business of the assessee on September 18, 1991. The fact remains that the assessee had paid registration fees and penalty for not renewing its registration certificates under both the Acts for the abovesaid four years and the dealership of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms in the dealer s turnover, the assessment cannot be regarded as based on best judgment and penalty cannot be levied in respect of such items. The apex Court has further held that where account books are accepted along with other records, there can be no ground for making a best judgment assessment. It has also been held in State of Tamil Nadu v. Indian Silk Traders [1994] 94 STC 157 (Mad.) that sub-sections (2) and (3) of section 12 of the Act operate in a particular field where the assessing authority resorts to best of judgment assessment and that sub-sections (4) and (5) of section 12 operate in a different field where the assessment is made on the basis of the books of account rejecting the return submitted by the assessee as incorrect and incomplete. It was further held in that decision that once an assessment is made on the basis of the books of accounts the penalty under section 12(5) of the Act will be attracted, and that while the element of deliberateness, wilfulness or blameworthy conduct on the part of the assessee may not be necessary for invoking section 12(5) of the Act, the bona fides of the assessee have to be gone into before imposing penalty. It was also held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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