2016 (1) TMI 1047

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.... 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 had assessed the dealer under Sub section (3) of Section 33 of the Act and, therefore, Explanation (1) to Section 36(2)(c) could not have been invoked for levy of penalty under the said Section 36(2)(c)? (2) Whether on the facts and in the circumstances of the case, the Tribunal was correct in law in rejecting the contenti....

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....aid 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 Explanation which squarely occupies the field. In order to explain mutually exclusive scope of two Explanations, he has relied upon the judgment of the Division Bench of this Court in the case of Indoswe Engineers (P.) Ltd. ..vs.. State of Maharashtra, reported at 1996 (Vol.101) 177, particularly paragraph No.24 thereof. He points out that this judgment has been looked into by later Division Bench of this Court while answering Sales Tax Reference No.17 of 2003 on 26.12.2015 and the very same view has been taken. 5. Learned counsel for the respondent Shri Rishikesh Chitale i....

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....t amount is mentioned as Rs. 88/. In the judgment dated 31.10.1984, allowing the reference to be made, the Tribunal has mentioned the amount as Rs. 88/and has further noted that, in first appeal against order of assessment and penalty, ground relating to imposition of said penalty with reference to Explanation II was not pressed. 8. At this juncture, it will be proper to refer to the provisions of Sections 33(3) and 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 ser....

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....es was disclosed for part of this period while it was not so disclosed for quarter ending on 30.6.1978. 11. 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 Rs. 34,575.85. The tax has been worked out on the basis of books of account of assessee after he produced the same in response to notice of department and, therefore, it is not best judgment assessment. The fact that the assessee has paid tax of Rs. 22,018.86 has also been taken note of. It is found that the said payment is not 80% of the tax worked out and, therefore, presumption under Explanation I of Section 36(2)(c) of the said Act has been invoked after following due procedure. In ....