State Of Madras v. M.S.K. Shahul Hameed

(Delivered by Veeraswami, J.)

We are of the view that the Tribunal was right. The provisional returns, assuming they were incorrect, could not be the basis of assessment under S. 12(2) when once, before an assessment order is made, the assessee informs the assessment officer of the correct turnover. It does not, in our view, matter in which the correct return is brought to the notice of the assessing officer before he made a final order under S. 12(2). The substance and not the form should be regarded so far as the correct return of the turnover it concerned. When a correct return or what is claimed to be a correct return is made before the assessment order, the assessing officer is bound to take note of it and is not entitled to ignore it and proceed on the footing that inasmuch as the assessee had filed incomplete or erroneous provisional monthly returns, that should be the basis for application of S. 12(2). The scheme of the Act and the history of S. 13 will clearly show that the power to demand provisional returns and make provisional assessment is a power separate from the power to make a final assessment. It is only where an assessment under Sub-S. (2) of S. 12 is made can there be any room for applying Sub-S. (3) of S. 12. All that is stated is that the monthly returns at the option of the assessee were not correct returns. That may or may not be so. But when before, as we said, the final assessment is made, correct return of the turnover is brought to the notice of the assessing officer, he has got to make the assessment only on the basis of such return and not on the basis of the provisional returns. On that view, no interference is called for with the order of the Tribunal.

The tax case is dismissed.

V.C.S