1962 (12) TMI 41

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....r the assessing authority levied a penalty of Rs. 3,000 under section 12(3) of the Madras General Sales Tax Act. This order was made after the issue of a notice dated 31st October, 1960, to the petitioner proposing to levy the penalty for his failure to submit a return. The petitioner objected to the levy on the ground that all his account books had been taken away by the Special Deputy Commercial Tax Officer, Tanjore, on 21st April, 1960, and they were not available with him to enable him to make a return on or before 1st May, 1960, as the notice required him to do. Nevertheless by the order dated 30th November, 1960, the Deputy Commercial Tax Officer made the assessment for the assessment year 1959-60 on the basis of the several accounts ....

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.... is not denied that there was factually a failure to submit a return so that the jurisdiction of the assessing authority to take action under section 12(3) of the Act can hardly be questioned. But the facts are somewhat peculiar, for, what happened is this: The Special Deputy Commercial Tax Officer (Detections) made a surprise visit to the place of business of the dealer on 21st April, 1960. 14 account books were seized. According to these account books the dealer had a turnover of very nearly Rs. 2 lakhs. Simultaneously a notice was issued to him calling upon him to submit a return on or before 1st May, 1960. It is not denied by the department that the account books continued to be in the possession of the department and that the dealer ha....

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.... the ground that the account books were with the department though that fact was in the forefront and the assessing authority was fully aware of the circumstance that the account books were with the department. It is clear that to ask an assessee to submit a return and at the same time taking away his books of account is to demand the impossible. It is unthinkable that the Deputy Commercial Tax Officer could proceed to penalise a person for not doing something, the doing of it being prevented by the officer's own action. In this view of the matter there is no doubt whatsoever that there has been a gross violation of the principles of natural justice. That the assessee failed to submit return for earlier years or failed to register himsel....