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Judgment
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 u/s 1.2(2) when once, before an assessment order is made, the assessee informs the assessing officer of the correct turnover.
It does not, in our view, matter in which form the correct return is brought to the notice of the assessing officer before he made a final order u/s
12(2) . The substance and not the form should be regarded so far as the correct return of the turnover is 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 Section 12(2). The scheme of the Act and the history of Section 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-section (2) of Section 12 is made can there be any room for applying Sub-section (3) of Section 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.