2011 (6) TMI 714 - HC - VAT and Sales Tax

Whether on the facts and in the circumstances of the case the Tribunal was right in sustaining the assessment merely based on the freight receipt alone is correct in law? Whether on the facts and in the circumstances of the case the Tribunal was right in sustaining further addition when there was no material evidence for such addition as the inspection was conducted only on September 3 1994? Whether on the facts and in the circumstances of the case the Tribunal was right in sustaining the penalty when there was no evidence to establish that there was a concluded contract of sale which was suppressed by the petitioner is correct in law? Held that - The addition made on actual suppression is confirmed. Further the assessing officer also made equal amount of probable omission and suppression of 60, 189. It is only probable omission and there is no concrete evidence available to make this addition and also there is no material available except on the basis that there is probable omission and suppression. Therefore in the absence of evidence addition cannot be made and the Tribunal is wrong in confirming equal amount of probable omission. Therefore addition of a sum of 60, 189 made on the basis of the equal amount of probable omission and suppression is deleted and consequently the penalty levied on the same turnover is also deleted. We also confirm the actual suppression made and delete the equal amount of probable omission and corresponding penalty on the turnover is also deleted and the revision in T.C. (R) No. 940 of 2006 is allowed in part The authorities have correctly made the actual suppression and also made equal amount for probable omission and the assessee has not filed any document to prove the purchases then accounted for. In such circumstances the authorities below have correctly made addition and equal addition and also correctly levied penalty which is based on valid materials and evidence and we do not find any illegality or irregularity in the order passed by the Tribunal for the assessment year 1994-95. In these circumstances we answer the questions in favour of the Revenue and against the assessee and the revision in T.C. (R) No. 989 of 2006 is dismissed

Summary

Issues:
1. Assessment based on freight receipt
2. Addition without material evidence
3. Sustaining penalty without evidence of suppressed sales

Analysis:

Issue 1: Assessment based on freight receipt
The petitioner, a dealer in various materials, challenged the assessment under the Tamil Nadu General Sales Tax Act for the years 1993-94 and 1994-95. The assessing officer alleged suppression of sales based on lorry receipts. The Appellate Assistant Commissioner upheld the assessment for 1993-94 and modified it for 1994-95. The Sales Tax Appellate Tribunal dismissed the appeals. The petitioner contended that the assessment was unjustified as it relied solely on lorry receipts without concrete evidence of concluded sales contracts. However, the court found that the consignee's name and address on the receipts linked to the assessee indicated actual suppression. While confirming the actual suppression, the court rejected the equal addition made without concrete evidence, leading to the deletion of the added amount and corresponding penalty.

Issue 2: Addition without material evidence
For the assessment year 1994-95, the assessing officer alleged suppression based on stock discrepancies and purchase suppression found in records. The Appellate Assistant Commissioner modified the assessment but remanded the penalty issue. The court noted discrepancies in stock transfer and valid evidence of purchase suppression. The authorities found that unaccounted lorry receipts indicated transactions outside the books. The court upheld the actual suppression and equal addition made by the assessing officer, as the petitioner failed to provide evidence for the unaccounted purchases. Consequently, the court dismissed the revision against the assessment for 1994-95, upholding the additions and penalty.

Issue 3: Sustaining penalty without evidence of suppressed sales
The court emphasized the importance of concrete evidence in tax assessments. While confirming actual suppressions based on valid evidence, the court struck down additions made without sufficient proof. The judgment highlighted the necessity of supporting claims with tangible material to justify penalties and additions in tax assessments.