TMI Blog2001 (2) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The assessing authority also found that timber purchased from local registered dealers were converted as windows, window frames and doors and used in the construction work. Therefore, adding 10 per cent gross profit on the value of materials purchased from unregistered dealers and also materials purchased from inter-State and used in the construction, the assessing authority brought the assessment, the relative turnover apart from estimating the sale value of doors, windows and window frames, etc., obtained from timber by adding 5 per cent towards labour charges and 10 per cent towards gross profit on the purchase value of Rs. 13,49,067. After considering the objections, the assessing authority fixed the total turnover as Rs. 1,77,03,122 and the taxable turnover as Rs. 29,92,756 as indicated below: Taxable turnover determined Rs. 1,29,92,756.00 Exemption allowed (1,52,09,934-6,48,248) 1,45,61,686.00 Casurina poles (Centring materials) 1,48,680.00 1,47,10,366.00 Total turnover determined 1,77,03,122.00 S. No. Description Turno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o flush doors and timbers used after conversion as window frames and doors and thereafter pass fresh assessment orders. As regards penalty levied under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959, the Appellate Assistant Commissioner observed that as a part of the turnover assessed to tax was set aside and remanded to the assessing authority for fresh disposal, the levy of penalty under section 12(3)(b) of the Act was also set aside and remanded back to the assessing authority for fresh disposal. In the second appeal, the Appellate Tribunal observed that the levy of tax on the turnover pertaining to purchases from unregistered dealers is in order inasmuch as under section 3-B of the Act deduction is given only in respect of tax suffered goods. As regards the turnover assessed to tax with reference to inter-State purchases, the Appellate Tribunal categorically stated that the contract was executed in Tamil Nadu and that the execution of the works contract is not in the course of export or import or inter-State trade or commerce. It was only a local works contract initiated and completed in the State of Tamil Nadu and therefore no exemption could be allowed under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k, the rate of tax shall be determined separately for each such item of work. (2) The taxable turnover of the dealer of transfer of property involved in the execution of works contract shall, on and from the 26th day of June 1986, be arrived at after deducting the following amounts from the total turnover of that dealer: (a) all amounts involved in respect of goods involved in the execution of works contract in the course of export of the goods out of the territory of India, or in the course of import of the goods into the territory of India or in the course of inter-State trade or commerce." 6.. Section 3-B(1) clearly says that the levy of tax in respect of works contract is on the taxable turnover of transfer of property in goods involved in the execution of works contract. In section 3-B(2)(a) among others, deduction from the total turnover is allowed if the goods involved in the execution of works contract is in the course of inter-State trade or commerce. However, in the present case the petitioners have purchased ceramic tiles and paints and used them in the execution of works contract. In the first place, nothing was let in to show that the goods moved in the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods involved with reference to purchases from unregistered dealers and goods received from other States, but he has also estimated the sale value of windows, doors, etc., used in the construction work after converting the timber purchased from local dealers. Though the matter relating to quantum of turnover in this regard was remitted to the assessing authority to give relief for purchases of flush doors as found in the accounts, still the fact remains that the turnover of doors and windows, etc., not reported in the return was assessed to best judgment in the order passed by the assessing authority. Therefore, the claim of the petitioner that the assessment is not a best judgment assessment is totally incorrect. According to section 12 of the Tamil Nadu General Sales Tax Act, 1959, the final assessment falls under two categories. If the assessment falls under section 12(1)(a), it is not a best judgment assessment. The relevant portion of section 12(1)(a) reads as follows: "12. Procedure to be followed by the assessing authority.-(1)(a) The assessment in respect of a dealer shall be on the basis of the prescribed return relating to his turnover submitted in the prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the return, falls short of the tax assessed on the final assessment by more than fifty per cent, but not more than seventy-five per cent; (v) one hundred and fifty per cent of the difference of the tax assessed and the tax paid as per the return, if the tax paid as per the return, falls short of the tax assessed on the final assessment by more than seventy-five per cent." 8.. On a comprehensive reading of the above provisions of the Act, it is quite clear that only if the returns submitted in the prescribed manner indicating clearly the taxable turnover and payment of tax are accepted as such, then such an assessment falling under section 12(1)(a) of the Act is not a best judgment assessment. On the other hand, if no return is submitted, within the prescribed period or the return submitted was found to be incomplete or incorrect, then assessment made is a best judgment assessment falling under section 12(2) of the Tamil Nadu General Sales Tax Act, 1959. As regards penalty, if an assessment has been passed under section 12(2) of the Act after noticing either no return or furnishing of incomplete or incorrect return, then penalty is warranted even if the difference between ..... X X X X Extracts X X X X X X X X Extracts X X X X
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