2010 (3) TMI 1032 - HC - VAT and Sales Tax

Suppression at four times the stock variation in quantity - Held that - There is nothing to indicate from the Tribunal s order the basis of their estimation of suppressed turnover at ₹ 3 lakhs. Since we find no basis for the Tribunal to change the pattern of addition, we feel four times the quantity of suppression adopted by the first appellate authority is perfectly in order, and we do not want to disturb the discretionary power exercised by him. However, four times the addition should be on the quantity of suppression and the valuation of the suppressed quantity should be uniformly adopted at the rate of ₹ 59.62 per kg. We do not think it is a fit case to consider the question raised by the State whether rule 38(5) will apply retrospectively because in this case having regard to the modified additions sustained by us we do not want to disturb the finding of the Tribunal on purchase tax assessment. We direct the assessing officer to follow the Tribunal s order on this issue with the modification of the turnover as fixed above. Tax Revision case filed by the assessee is dismissed and tax revision case filed by the State is partly allowed

Summary

Issues:
Assessment of the assessee for the year 2005-06, compounding fee collection, suppression in quantity and undervaluation, rejection of books of account, estimation of turnover, interpretation of section 74(2) before and after amendment, challenge against the value adopted for assessment, challenge against the pattern of addition sustained by the Tribunal, application of rule 38(5) retrospectively.

Assessment of the Assessee:
The case involved assessment of the assessee for the year 2005-06, where stock variation was noticed during inspection. The assessee was engaged in undervaluation as well, with the assessing officer finding discrepancies in sale prices and unaccounted sale proceeds. The rejection of books of account and estimation of turnover were confirmed in the first appeal.

Interpretation of Section 74(2) - Pre and Post Amendment:
The dispute arose regarding the interpretation of section 74(2) before and after amendment. The amendment clarified that no further penal or prosecution proceedings shall be taken against the person after payment under sub-section (1). The court held that even before the amendment, section 74(2) did not prohibit assessment based on compounding, as it dealt with penal and prosecution proceedings, not assessment.

Challenge Against Value Adopted for Assessment:
The assessing officer adopted the actual sale price for assessment, which was contested by the assessee. The court found that the value fixed for compounding was not binding, and the officer's adoption of the actual sale figures was justified based on corroborative evidence.

Challenge Against Pattern of Addition:
The Tribunal altered the pattern of addition for suppressed turnover without providing a basis for their estimation. The court upheld the first appellate authority's decision of four times the quantity of suppression and directed uniform valuation at the actual sale price.

Application of Rule 38(5) Retrospectively:
The court decided not to consider the retrospective application of rule 38(5) due to the modified additions sustained. The assessing officer was directed to follow the Tribunal's order on this issue with the modifications made by the court.

In conclusion, the Tax Revision case filed by the assessee was dismissed, while the Tax Revision case filed by the State was partly allowed by modifying the Tribunal's order on certain issues.