TaxTMI 
TaxTMI 
2018 (5) TMI 1284
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...., has assessed the respondent on the turnover of Rs. 2,41,252/-, at 5% in respect of potato chips, a sum of Rs. 43,078/- at 6%, in respect of detergent soaps, a sum of Rs. 3,253/- at 6%, in respect of cleaning powder, a sum of Rs. 2,303/- at 5% in respect of ball point refills and levied a penalty of Rs. 22,456/-, under Section 12 (5) (iii) of the Act. 3. Being aggrieved, the respondent has preferred an appeal, before the Appellate Assistant Commissioner (C.T) III, Madras. The Appellate Assistant Commissioner sustained the turnover of Rs. 2,41,252/- and Rs. 2,303/-, and deleted the other turnover and penalty. The dealer filed T.A.No.111 of 1991, before the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai. Vide Order, dat....
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....itional State representative has stated that deletion of penalty is not correct and the assessment was made under Section 12 (4) only and not under Section 12 (2). There is a force in the argument of the learned Additional State representative. The enhancement petition has been called out for the accounts only. It is not an imaginary figure and it cannot be terms as for the best of the judgment of the Assessing Officer. The figures are available in the accounts and the gross profit has been adopted as per the accounts only. This assessment is made under Section 12 (4) of the Act. There is a reason for deleting the penalty. The learned Appellate Assistant Commissioner has observed that in the bonafide belief that the potato chips are exempte....
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.... on final assessment by more than five per cent but not more than fifteen per cent; (ii) seventy-five per cent of the difference of the tax assessed and the tax paid as per return, if the tax paid as per the return falls short of the tax assessed on final assessment by more than fifteen per cent but not more than twenty-five per cent; 7. In Appollo Saline Pharmaceuticals (P) Ltd., Vs. Commercial Tax Officer (FAC) and Others, reported in {(2002) 125 STC 505}, considering a decision of the Hon'ble Supreme Court in State of Madras Vs. Jayaraj Nadar & Sons {(1971) 28 STC 700, at paras 5 to 7, held as follows:- "5. The Supreme Court in the case of State of Madras Vs. Jayaraj Nadar & Sons {(1971) 28 STC 700, at page 701, after extractin....
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....rala Vs. 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." 6. The law so declared that the best judgment assessment is based on an estimate and is not one based solely on the account books was reiterated by the Supreme Court in the case of Commissioner of Sales Tax, Madhya Pradesh Vs. H.M.Esufali H.M.ABDULALI {(1973) 32 stc 77}. 7. Though other sub-Sections of Section 12 were amended by the State Legislature subsequent to the date of the judgment in the case of Jayaraj Nadar & Sons {(1971) 28 STC 700 (SC), Sections 12 (1) and 12 (2) have remained in the same form. The legislative intention therefore, except during the period Dec....
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.... book turnover itself. Thus, even while calculating the turnover for the purpose of levy of penalty, the turnover, which are already available in the books of accounts are to be excluded and only those turnover which are estimated having reference to a specific concealment alone, the purpose of addition, invite the penal provisions under the Tamil Nadu General Sales Tax Act, 1959. In the decision reported in [2002] 125 STC 505 (Mad) (Appollo Saline Pharmaceuticals (P) Limited v. Commercial Tax Officer (FAC)) this court pointed out that when the assessment is based on the accounts turnover, the question of levy of penalty does not arise." 9. In the circumstances, applying the said decision reported in [2002] 125 STC 505 (Mad) (Appollo Sali....