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2016 (1) TMI 1047 - BOMBAY HIGH COURT

2016 (1) TMI 1047 - BOMBAY HIGH COURT - [2016] 90 VST 37 (Bom) - Nature of assessment - best judgment assessment or not - Levy of penalty - Assessment made under Sub section (3) of Section 33 of Maharashtra Sales Tax Act, 1959 - Held that:- The order of assessment, looks into the books of account produced by the assessee, draws various transactions from it and ultimately works out tax at ₹ 34,575.85. The tax has been worked out on the basis of books of account of assessee after he produced .....

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turns which are filed belatedly i.e. after prescribed date. The provisions of Explanations I and II of Section 36(2)(c) of the said Act are no doubt mutually exclusive, but then that does mean that the provisions of Sections 33(3) and 33(5) of the said Act are also mutually exclusive. If the return is filed belatedly and it does not give correct and complete figures, the provisions of Section 33(3) of the said Act can be applied by the department to such return. - Levy of penalty confirmed .....

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dent Shri Rishikesh Chitale. 2. Following questions are referred to this Court under Section 61 of the Maharashtra Sales Tax Act, 1959 (earlier Bombay Sales Act, 1959) (for short, the said Act ), thus : (1) Whether on the facts and circumstances of the case, the Tribunal was justified in coming to the conclusion that the order of assessment was governed by Sub section (5) of Section 33 of the Act and not by Sub section (3) of Section 33 of the Act inspite of the fact that the sales tax officer h .....

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of penalty in two different sets of circumstances and that penalty can be converted from Explanation (1) to Explanation (2) or Section 36(2)(c) of the Act? 3. By placing reliance upon the order passed by the sales tax officer on 5.8.1980, learned Additional Government Pleader for the applicant Shri S.M. Uike submits that it expressly refers to Section 33(3) of the said Act and also points out the actual figures of sales and purchases from books of account. Thereafter, the tax paid along with ret .....

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. According to him, Section 33(3) of the said Act proceeds on the basis of information furnished in the return while Section 33(5) of the said Act can be invoked in cases where return is not filed within prescribed time. In the present matter, as returns have not been filed within prescribed time, Section 33(5) of the said Act is squarely attracted. As Section 33(5) of the said Act is attracted, Explanation I to Section 36(2)(c) cannot have any application as in that event it is later Explanatio .....

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taken. 5. Learned counsel for the respondent Shri Rishikesh Chitale invites our attention to order of sales tax officer dated 5.8.1980 to urge that it does not mention any return filed by the assassee and, therefore, it has been passed by exercising best judgment and, hence, essentially falls under Section 33(5) of the said Act. 6. Learned Additional Government Pleader for the applicant Shri S.M. Uike invites our attention to the provisions of Section 36(2) as prevailing on the date when the re .....

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riod from 1.7.1977 to 30.6.1978. The returns for the quarters ending of 30.9.1977, 31.12.1977, and 31.3.1978 were filed late and return for the quarter ending on 30.6.1978 was not filed at all. The sales tax officer imposed penalties under Section 36(2)(c) of the said Act with reference to Explanations I, II, and also under Section 36(3) of the said Act. In statement of case forwarded to this Court, amount of penalty imposed under Explanation II of Section 36(2)(c) of the said Act is mentioned a .....

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33(5) of the said Act. Section 33(3) of the said Act contemplates nonsatisfaction of the Commissioner and, hence, when that authority is satisfied that the return furnished by assessee is not correct or complete, and thinks it necessary to require the presence of dealer or production of further evidence, he is empowered to serve upon such dealer a notice to attend and to produce all evidence on which such dealer relies in support of his return or to produce such evidence as is specified in the n .....

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urge that the returns so filed cannot be subjected to Section 33(3) of the said Act at all. 10. In present facts, it is not in dispute that the assessee filed the returns belatedly and before imposing penalty, he was also served with a show cause notice on 24.7.1980. The order of assessment dated 5.8.1980 expressly records that no reasonable cause would be shown by him as to why penalty should not be inflicted. Here, for quarters ending 30.9.1977, 31.12.1977, and 31.3.1978 returns have been file .....

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