STATE OF TAMIL NADU Vs. BHAVANI OIL MILLS

JUDGEMENT

(1.) THE order of the Court was made by THANIKKACHALAM, J. THE state is the petitioner. THE assessee is Bhavani Oil Mills, Poonamallee. THE Tribunal after hearing the arguments of the learned counsel and perusing the records, sustained the assessment on a turnover ofRs. 807. 80 and deleted the turnover of Rs. 6, 000. THE Tribunal also deleted the penalty levied under section12 (5) of the Act holding that the assessing officer had resorted to the best judgment assessment, since the accounts were found not correct. According to learned Additional Government pleader (Taxes), the order of the Tribunal, deleting the penalty, is not acceptable. It was submitted that even though section12 (4)of the Act was not attracted, the penalty is exigible in the present case under section 12 (3) of the Act. In order to support this contention, reliance was placed upon the decision in Devendran and Company v. State of Tamil Nadu.

(2.) WE have heard learned Additional Government Pleader and also perused the records in the case carefully. In the present case, the books of accounts maintained by the assessee were found to be incorrect. In a case where the accounts maintained by the assessee are correct, but the return filed by the assessee is incorrect, penalty is exigible under section12 (5) of the Act. As already pointed out, in the present case, the books of accounts are found to be not correct. Therefore, if at all penalty is exigible , it can be levied only under section12 (3) of the Act. For levying penalty under section12 (3) of the Act, mala fide has to be established. In the present case, there is no scope warranting such a mala fide on the part of the assessee. Hence, penalty under section 12 (3) is also not possible. Therefore, the decision in Devendran and Co.'s is not applicable to the present case. WE are not able to interfere with the order of the Tribunal for that reason. In the result, the revision is dismissed. No costs. .