Judgment

GROVER, J. :- This is an appeal from a judgment of the Madras High Court in a matter arising out of the Madras General Sales Tax Act 1959, hereinafter called the "Act".

2. The assessee is a dealer in motor cars, trucks, scooters, motor spare parts and certain other goods. He returned a turnover of Rupees 42,09,912,12 for the assessment year 1961-62. The Commercial Tax Officer on scrutiny of accounts determined the turnover at Rupees 68,06,331.49. During the assessment proceedings it was found that the assessee had not included in the monthly return in Form A-2, three items of turnover. The first was a sum of Rs.1,95,311.21 relating to delivery charges which the assessee had paid to certain Calcutta dealers from whom he had made purchases of cars, trucks, scooters etc. The second item was of Rs. 2,21,247.97 which related to the sales of motor parts. The third item was of Rupees 1,56,539.25 being the aggregate of the sale proceeds of firewood. The assessing authority served a notice on the assessee to show cause why these items should not be brought to tax. The assessee filed objections which were rejected. The assessing authority found that the delivery charges paid by the assessee were included in the cost price when the cars, trucks, scooters etc, were sold by it and sales tax at 7% had been collected by the assesse on the delivery charges. As regards the second item it was held that the assessee had failed to maintain separate accounts contrary to the rules in respect of the first sales of parts and as it was not possible to separate the first sales from the general entries in the account books it was necessary to make assessment on best judgment. The assessment was completed but certain penalty was levied on the assessee. The assessee appealed to the Appellate Assistant Commissioner who took the view that the failure of the assessee to disclose the taxable turnover in the monthly returns was due to a bona fide impression on the assessee s part that it would be sufficient if correct figures were furnished at the time of the final assessment. He, therefore, imposed a nominal penalty. The Board of Revenue in exercise of its power under Section 34 of the Act set aside the order of the Appellate Assistant Commissioner. According to the Board s findings the failure of the assessee to disclose the turnover in question was deliberate and called or no lenient treatment. An appeal was filed against the order of the Board of Revenue to the Madras High Court. The High Court allowed the appeal so far as the first and third items were concerned. As regards the second item it decided against the assessee.

3. Section 12 (2) of the Act is in the following terms :-

"If no return is submitted by the dealer under sub-section (1) within the prescribed period, or if the return, submitted by him appears to the assessing authority to be incomplete or incorrect, the assessing authority shall after making such enquiry as it may consider necessary, assess the dealer to the best of its judgment :

Provided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of proving the correctness or completeness of any return submitted by him".

The question is whether penalty can be levied while making the assessment under sub-section (2) of the above section merely because an incorrect return has been filed. The High Court was of the view that it is only if the assessment has to be made to the best of the judgment of the assessing authority that penalty can be levied. It seems to us that the High Court came to the correct conclusion because sub-sections (2) and (3) have to be read together. Sub-section (2) empowers the assessing authority to assess the dealer to the best of its judgment in two events; (i) if no return has been submitted by the dealer under sub-section (1) within the prescribed period and (ii) if the return submitted by him appears to be incomplete or incorrect. Sub-section (3) empowers the asses