B.P. Jeevan Reddy and; S. Saghir Ahmad, JJ.
1. Civil Appeals Nos. 2744-48 of 1979 are preferred by the State of Andhra Pradesh against the judgment of the High Court allowing the tax revision cases filed by the assessee. Civil Appeal No. 2749 of 1979 is preferred by the assessee against the very same judgment insofar as it goes against him. The matters arise under the Andhra Pradesh General Sales Tax Act. The assessment years concerned are 1967-68 to 1973-74. The only question is whether the levy of penalty under Section 14(3) of the Act is sustainable in the facts of this case or not. The relevant facts are the following:
The assessee was dealing in paddy and chemical fertilisers. He had not registered himself as a dealer nor had he filed returns in time. An inspection was carried out in his premises on 9-12-1973 and certain material recovered. It is only after the inspection that the respondent filed the returns. An assessment order was made on 22-3-1974 in respect of all the assessment years. We may refer to the contents of the assessment order insofar as Assessment Year 1968-69 is concerned, by way of illustration.
2. On the basis of the material discovered during the inspection, the Commercial Tax Officer determined the net turnover at Rs 17,239.57. Curiously enough it so happened that in the return filed by the assessee for the said year, the turnover disclosed happened to be the identical figure. After noticing the said fact, the Commercial Tax Officer made the assessment in the following words:
“The turnover reported by him in the A1 return which was filed after detection of the material has agreed with the turnover in the detected material. The turnover for the year 1968-69 is proposed to be determined as follows:
Turnover found in the material Rs 17,239.57
Exemption turnover nil
Net turnover @ 5% 11,490.07
@ 3% 5749.50 Rs 17,239.57
It is also proposed to levy penalty under Section 14(3) read with Section 14(8) of the Andhra Pradesh General Sales Tax Act, 1957 on the detected turnover of Rs 17,239.57.”
3. The question is whether the High Court was right in saying that the assessment made was not a best judgment assessment but an assessment made accepting the return. With respect, we are unable to agree with the High Court. The relevant portion of the order extracted above clearly shows that the turnover was determined on the basis of the material discovered during the inspection. It so happened that the turnover disclosed in the return also happened to be identical but that does not make it an assessment on the basis of and accepting the assessment. There are no words in the assessment order to the effect that the return is accepted or showing that the assessment order was based upon the return. On the contrary, the portion extracted hereinabove clearly shows that the order of assessment was based upon the material discovered during the inspection. Merely because the figure of turnover disclosed in the return — which looks rather strange — tallies with the figure of the turnover determined on the basis of the material discovered it does not mean that it is not a best judgment assessment. Section 14(3) of the Act reads as follows:
“14. (3) Where any dealer liable to tax under this Act—
(i) fails to submit return before the date prescribed in that behalf, or
(ii) produces the accounts, registers and other documents after inspection, or
(iii) submits a return subsequent to the date of inspection, the assessing authority may, at any time within a period of six years from the expiry of the year to which assessment relates, after issuing a notice to the dealer and after such inquiry as he considers necessary, assess to the best of his judgment, the amount of tax due from the dealer on his turnover for that year, and may direct the dealer to pay in addition to the tax so assessed penalty as specified in sub-section (8).”
4. According to this sub-section the assessing authority may make a best judgment assessment in either of the three situations mentioned therein. Not only can he make a best judgment assessment, he can also levy penalty. In this case, the assessee did not file a return before the prescribed date and he did actually submit the returns subsequent to the date of inspection. Therefore, his case squarely fell within clause (i) as well as clause (iii) of the said sub-section. We have already found that the assessment made in this case is a best judgment assessment. If so, the penalty was also leviable under the very same sub-section.
5. We may mention that with respect to Assessment Year 1973-74, the High Court has dismissed the tax revision case filed by the assessee on the ground that the assessment in that case was a best judgment assessment inasmuch as the Commercial Tax Officer had added a sum of rupees three thousand and odd to the figure disclosed in the return. We see no reason to differ from the opinion of the High Court in the facts and circumstances of the case to the extent of the said assessment year.
6. For the above reasons Civil Appeals Nos. 2744-48 of 1979 are allowed, the judgment of the High Court is set aside and the order of the Tribunal is restored. Civil Appeal No. 2749 of 1979 preferred by the assessee is dismissed. No costs.