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2015 (11) TMI 261 - HC - VAT and Sales TaxExemption from sales tax - HDPE fabrics - Assistant Commissioner sustained 50 per cent of the suppressions and modified the penalty accordingly - Held that - Discrepancy, as attempted to be pointed out by the learned counsel appearing for the petitioner that there was an error in the number of slips in the first round of litigation and therefore, there is error in the determination of escaped assessment in respect of HDPE bags. This was corrected by the Tribunal by way of remand. But, on remand from the Tribunal, we find the second order was passed by the assessing authority after detailed verification of D7 records and the lorry receipts to come to a conclusion as to the quantum and sales of bags, allegedly HDPE fabrics. We find such a determination made by the assessing authority has been rightly confirmed by the Tribunal. We are not inclined to go into individual slips to find fault with the calculation made by the assessing authority, which was confirmed by the Tribunal. Being pure question of fact, we find no error in the order of the Tribunal. We find no question of law much less any substantial question of law arises for consideration in these revisions. Insofar as levy of penalty under section 16(2) of the TNGST Act, for the assessment year 1987-88 and under section 12(5)(iii) of the TNGST Act for the assessment year 1988-89 is concerned, the provision of section 16(2) and section 12(5)(iii) of the TNGST Act provides for levy of penalty between 50 per cent and 150 per cent. The assessing authority levied penalty at 150 per cent whereas the Tribunal has thought it fit to reduce the same at 75 per cent. We find no reason to interfere with the discretion exercised by the Tribunal in the case of suppression of material fact with an intention to avail wrongful benefit. - Decided against assessee.
Issues Involved:
1. Assessment of entire turnover based on partial evidence. 2. Generalization of assessment contrary to apex court decision. 3. Determination of sale items based on transporter's description. 4. Acceptance of transporter's statement. 5. Levy of penalty under section 12(5)(iii) of the TNGST Act, 1959. 6. Levy of penalty under section 16(2) of the TNGST Act, 1959. Issue-Wise Detailed Analysis: 1. Assessment of Entire Turnover Based on Partial Evidence: The primary issue was whether the Tribunal was correct in endorsing the assessment of the entire turnover by the assessing officer when the slips recovered only formed a part of the turnover. The Tribunal upheld the assessment, stating that the assessing officer had rightly considered the turnovers covered in the lorry waybills recovered during the inspection and restricted the exemption claim to that extent. The Tribunal rejected the evidence provided by the transporter, Southern Roadways Limited, due to a beneficial relationship with the assessee, and concluded that the items transported were HDPE bags, not HDPE fabrics. 2. Generalization of Assessment Contrary to Apex Court Decision: The assessee argued that the Tribunal overlooked the generalization of the assessment made by the assessing officer, contrary to the decision in Tata Engineering and Locomotive Co. Ltd. v. Assistant Commissioner of Commercial Taxes, Jamshedpur. The Tribunal, however, found that the assessment was based on specific records (D7 records) recovered during the inspection and not generalized. The Tribunal affirmed the assessing officer's decision to include the turnover from the recovered lorry waybills in the taxable turnover. 3. Determination of Sale Items Based on Transporter's Description: The Tribunal concluded that the appellant had sold HDPE bags and not HDPE fabrics, based on the description adopted by the transporter in the lorry waybills. The Tribunal dismissed the appellant's contention that they sold only HDPE fabrics, stating that if the items sold were indeed HDPE fabrics, the transporter would have mentioned it in the lorry waybills. The Tribunal found that the description of the items as 'HDPE bags' in the lorry waybills was valid evidence. 4. Acceptance of Transporter's Statement: The Tribunal rejected the statement recorded by the transporter in favor of the appellant, citing a beneficial relationship between the assessee and the transporter, Southern Roadways Limited. The Tribunal held that the letter from the transporter could not be considered valid evidence due to the regular business relationship between the parties. 5. Levy of Penalty under Section 12(5)(iii) of the TNGST Act, 1959: The Tribunal confirmed the levy of penalty under section 12(5)(iii) for the assessment year 1988-89. The Tribunal noted that the assessing officer had levied a penalty of 150% of the tax due on the suppressed turnover. However, considering the facts and circumstances, the Tribunal reduced the penalty to 75% of the tax due, finding it fair and just. 6. Levy of Penalty under Section 16(2) of the TNGST Act, 1959: Similarly, for the assessment year 1987-88, the Tribunal confirmed the levy of penalty under section 16(2) of the TNGST Act. The Tribunal reduced the penalty from 150% to 75% of the tax due, considering the suppression of material facts and the intention to avail wrongful benefit. The Tribunal exercised its discretion to reduce the penalty, finding no reason to interfere with the decision. Conclusion: The High Court dismissed the tax case (revisions) filed by the assessee, upholding the Tribunal's decision on all issues. The Court found no substantial question of law arising for consideration and confirmed the Tribunal's findings on the assessment of turnover and the levy of penalties. The Court also dismissed the accompanying miscellaneous petition.
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