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Mahendrakumar Ishwarlal and Co. Vs. Deputy Commercial Tax Officer - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 1288 of 1967
Judge
Reported in[1971]28STC551(Mad)
AppellantMahendrakumar Ishwarlal and Co.
RespondentDeputy Commercial Tax Officer
Appellant AdvocateT.S. Viswanatha Rao, Adv.
Respondent AdvocateK. Venkataswami, First Assistant Government Pleader
DispositionPetition allowed
Excerpt:
- .....he called a notice, after the year of assessment was over and when he was seized with the a-1 form return filed by the petitioner voluntarily, i am not able to conjecture. there was no necessity for the officer to write this to the assessee at all. having done so the occasion for provisional assessment does not arise, because he had a return before him and he was obliged in law to assess on that return after accepting it or rejecting it. he cannot assess provisionally once the year is over and once when the return in the prescribed form is before him for purposes of processing through the assessment. surprisingly enough he threatens penalty for submitting an untrue return when a return is already there in his files, and which contains material on which he should act and decide as an.....
Judgment:
ORDER

Ramaprasada Rao, J.

1. The petitioner, a dealer in jaggery, groundnut kernel etc., which is a partnership firm submitted the returns in Form A-1 for the assessment year 1966-67 to the respondent who is admittedly the original assessing authority. The assessing authority perused the returns and pointed out in a memo. dated 29th April, 1967, that there were certain mistakes apparent in the return and called upon him to correct his return. In fact he would say that the return includes a turnover which is not liable to tax; and he also pointed out that certain portions of the turnover, as disclosed in the return, were liable to tax at a specified percentage. But he added that unless revised return is filed within seven days of the receipt of that memo., which he calls a notice, he would provisionally assess him and levy a penalty for wilfully submitting an untrue return. It is as against this notice that the petitioner has come up to this Court stating that no provisional assessment can be made after the year of assessment is over and no penalty as threatened is called for in the circumstances of the case.

2. This is a case in which I should straightaway agree with the learned Counsel for the petitioner. As to what prompted the respondent to solicitously write this memo., which he called a notice, after the year of assessment was over and when he was seized with the A-1 Form return filed by the petitioner voluntarily, I am not able to conjecture. There was no necessity for the officer to write this to the assessee at all. Having done so the occasion for provisional assessment does not arise, because he had a return before him and he was obliged in law to assess on that return after accepting it or rejecting it. He cannot assess provisionally once the year is over and once when the return in the prescribed form is before him for purposes of processing through the assessment. Surprisingly enough he threatens penalty for submitting an untrue return when a return is already there in his files, and which contains material on which he should act and decide as an assessing authority. If the materials before him and the return filed by the assessee are not acceptable for any other reason, he can act in any manner known to law including the levy of penalty as provided under the Act. But the respondent has no jurisdiction to say that he would provisionally assess in the circumstances of the case and threaten the assessee with penalty for having wilfully submitted an untrue return. It is in this view of the matter, the rule nisi is made absolute and the writ petition is allowed. The assessing authority is at liberty to proceed with the assessment on the basis of the return filed by the petitioner and deal with it in accordance with law.


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