TMI Blog2006 (6) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... om April to November, 2005 in form VAT 200 and paid the tax due on such sales turnover after claiming input tax credit in terms of section 13 of the VAT Act. The respondent served a notice in form VAT 304 on November 8, 2005 on the petitioner. The petitioner's business premises was visited by the respondent and the books of accounts maintained by the petitioner were also examined. On the basis of such perusal of the books of accounts, the respondent issued a notice of assessment in form VAT 305 on November 10, 2005 proposing to assess the petitioner for the period from April 1, 2005 to November 8, 2005 on the alleged under-declared tax of Rs. 6,23,960 and also to levy penalty of Rs. 6,23,960 equivalent to 100 per cent of the alleged under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d underdeclared tax and committed fraud or wilful neglect which is essential ingredient of section 53(3) of the VAT Act. Even in the order passed it is nowhere stated that under-declared value was result of fraud or wilful neglect. Therefore, in our view, the penalty imposed was without jurisdiction. The learned counsel for the respondent, however, submits that the penalty and assessment have to come together in view of the fact that the assessment and penalty have been prescribed in a single form VAT 305 of the VAT Act. The format of the form is not going to change the meaning of section 53(3) of the VAT Act. Penalty of 100 per cent cannot be imposed unless it is established that under-valuation was result of fraud or wilful neglect and be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (8) on the turnover that was not disclosed by the dealer in his return." The provision was altogether different which was being interpreted by the Full Bench of this court. Even otherwise, it held: "Thus, while we see no objection for the simultaneous levy of penalty, we have a note of caution against such simultaneous levy. As the cause of action for best judgment assessment and levy of penalty is broadly the same, viz., furnishing of an incomplete or incorrect return warranting rejection of the return, some times the assessee may find it useful to press into service the findings/observations in the assessment order. He may be able to demonstrate that the best judgment assessment was based upon the mere failure of the assessee to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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