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TMI Blog2006 (4) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... fide exercise of power lacking in bona fides for the collateral purpose of raising an arbitrary and disproportionate liability to hurt the petitioners; (c) The condition precedent for the exercise of power under section 12(2) is incorrectness and incompleteness of the return submitted by the assessee and for this purpose no objective facts have been examined and evidence established. There is no finding of even a single proved purchase or sales omission. The records maintained in the course of business of the petitioners have not been shown to be unworthy of acceptance. (d) The flat rate assessment by arbitrarily adopting an alleged consumption of 5 units for sago and 6 units for starch as the energy consumption, has no independent or aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld on July 22, 2004, that the manufacturers were supplying sago to traders and not to the Sago Serve, resulting in loss of revenue and that demands will be raised based on electricity consumption and on the basis of octroi details in Maharashtra. It is the contention of the petitioners that there is no evidence to show that the petitioners had effected sales within or outside the State without payment of tax. According to the petitioners, in the abovesaid background, the Commercial Tax Department has been required to issue the best of judgment demands on a flat rate basis of electricity consumption. It is the allegation of the petitioners that demands are being raised at the instance of the Sago Serve for promoting its affairs and brow-beat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was issued. Similarly, notices were issued to various dealers like the petitioners herein in the months of August/September 2004 by the commercial tax authorities in Salem, Athur, Namakkal, Rasipuram and Aroor Divisions. The petitioners herein brought to the notice of the Principal Commissioner through their Association (TASMA) on September 16, 2004 and reminders dated October 7, 2004 were also sent, but there was no response. It is the case of the petitioners that they filed their objections to the show cause notice and was served with the notice of impugned assessment. By the impugned assessment, the flat rate of electricity consumption has been adopted and it has been arbitrarily stated (without calling for the books of account) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment assessments/revised assessments made on the basis of the survey report prepared in the year 1994 based on the consumption of electricity alone without looking into the account books are nothing but arbitrary and submitted that the impugned assessment orders/revised assessment orders are liable to be set aside. Mr. S. Manohar Sundaram, learned Government Advocate (Taxes), on written instructions from the respondents, submitted that though no counter-affidavit has been filed, the above writ petitions may have to be allowed with suitable directions to safeguard the interests of the Revenue. In fact, Mr. S. Manohar Sundaram produced a letter from the Commissioner of Commercial (Taxes), Chepauk, Chennai-5 addressed to the Special Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any objection for the same.
Accordingly, applying the law laid down by the two honourable division Benches of this court in the above said decisions, viz., Kalyani Oil Mills v. State of Madras [1973] 32 STC 542 and in the case of Madurai Soft Drinks (Private) Limited v. State of Tamil Nadu reported in [1985] 60 STC 94, the impugned proceedings are set aside. But however, the respective assessing officers are at liberty to pass fresh assessment orders/revised assessment orders in accordance with the law, more particularly applying the law laid down by this court in the cases mentioned supra.
For the foregoing reasons, the above writ petitions are allowed. No costs. Consequently, the connected pending W.P.M. Ps. are closed. X X X X Extracts X X X X X X X X Extracts X X X X
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