TMI Blog2019 (5) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed unless return is not filed or the filed return is rejected and, thereafter, assessment is made on best judgment basis. Neither of these requirements were fulfilled in the instant case. Petition allowed - decided in favor of petitioner. - Writ Petition No.33892 of 2006 And M.P.No.1 of 2006 - - - Dated:- 9-4-2019 - Mr. Justice Senthilkumar Ramamoorthy For the Petitioner : Mr.T.M.Hariharan For the Respondents : Mr.A.Edwin Prabhakar ORDER This writ petition is filed for a Writ of Certiorari to quash the impugned proceedings dated 26.06.2006 as without jurisdiction and contrary to the provisions of the Tamil Nadu General Sales Tax Act, 1959 (TNGST Act). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the dealer under sub-section (1) within the prescribed period, or if the return submitted by him appears to the assessing authority to be incomplete or incorrect, the assessing authority shall, after making such enquiry as it may consider necessary, assess the dealer to the best of its judgement [subject to such conditions as may be prescribed]: Provided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of proving the correctness or completeness of any return submitted by him. Section 12(3) In addition to the tax assessed [under sub-section (1) or (2),] the assessing authority shall, in the same order of assessment passed [under sub-section (1) or (2) or by a separate orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 final assessment by more than seventy-five per cent; 4.In order to substantiate his submission, the learned counsel for the Petitioner invited the attention of this Court to the decision of the Hon'ble Division Bench of this Court in APPOLLO SALINE PHARMACEUTICALS (P) LTD., V. COMMERCIAL TAX OFFICER (FAC) AND OTHERS, 125 STC 2002 wherein at paragragh-5, it was held as follows: 5. The Supreme Court in the case of State of Madras v. Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available material and the circumstances of each case : [see State of Kerala v. C.Velukutty (1966) 17 STC 465(SC] . Where account books are accepted along with other records there can be no ground for making a best judgment assessment. 5.Accordingly, the learned counsel for the Petitioner submitted that the instant case is squarely covered by the judgment of the Division Bench of this Court in the above mentioned case and that in view of the fact that the return filed by the Petitioner was not rejected by the Assessing Officer, penalty cannot be imposed under Section 12(3) read with 12(2) of the TNGST Act. 6.In response, the learned counsel for the Respondent pointed out that before imposing penalty by impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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