9911796707
TMI Blog1977 (11) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the assessment year 1969-70 and the assessee had purchased various machinery parts for processing plants under the cover of C forms. The materials have been used in the manufacture and processing of plants by the dealer. The dealer was originally assessed by order dt. 2nd July, 1975 on a total and taxable turnover of Rs. 29,9737 and Rs. 100 respectively by the Deputy Commercial Tax Officer (Central Sales Tax) Zone VII, Madras. But according to the assessing officer, the dealer sent a nil turnover under the Central Sales Tax Act though the dealer has purchased goods under the cover of 'C' forms the Rs. 4,72,127-46 for 1969-70. The assessing officer issued a notice to the dealers for the misuse the 'C' forms which is an offence punishab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penal in nature and that therefore the burden of proof is on the department regarding the misuse of the 'C' form. The department has not discharged its burden. There is no contumacious or dishonest conduct on the part of the appellant and that in order to sustain the penalty, it must be shown that the appellant acted deliberately in defiance of law. Therefore the levy of penalty has to be cancelled. 4. The point for consideration is whether the assessee misused the C forms to attract the operation of s. 10(d) and s. 10-A of the Central Sales Tax Act?. 5. Points : It is common case that the assessee is a registered dealer under the Central Sales Tax Act and that the assessee was permitted to purchase machinery parts for the purpose of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly mentioned in the assessment order for the purposes of the manufacture of processing of plants and sell them is not disputed. The further fact that the assessee has submitted a nil sale return for the same assessment period of 1969-70 and that was assessed on a nil turnover under the Central Sales Tax Act is not disputed. s.10(d) of the Central Sales Tax Act provides that, if any person after purchasing any goods for any of the purposes specified in clause (b) or clause (c) or clause (d) of sub-s,(3) of s.8 fails, without reasonable excuse, to make use of the goods for any such purposes he shall be punished with simple imprisonment etc. Under s.10(A) (1), if any person purchasing goods in guilty of an offence under s. 10(b) or (c) or (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers contract also made use of 'C' forms 27th December,1972. The assessee has filed a book set showing the particulars relating to the year wise sales turnover, works contract turnover, the assessment orders passed by the department, the appeals filed by the assessee and the result of the appeals filed by the assessee. We will consider the above aspect before arriving at a decision regarding the question of levy of penalty on the assessee for 1969-70. 8. In the year 1961-62, the assessee was assessed to tax on a taxable turnover of Rs. 32,800 by order dt. 31st January,1963. Subsequently a revised order was made on 31st March,1967, fixing the taxable turnover as Rs. 3,24,000 overlooking the assessee's plea that they related to works contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below the taxable limit. The same is evident from the assessment file relating to Central Sales Tax Act. We find from the assessment file relating to 1969-70, the assessee filed monthly returns from April, 1969. From April, 1969 to July 1969 there was no sale of the manufactured goods. In the return for August '69 the assessee has shown a sales turnover of Rs. 1,648 and also produced 'C' form for the sale. In the return for November '69 a sale turnover of Rs. 28,325 has been shown. The sale for August was in favour of a customer at Kurnool (AP) and the sale in November 1969 was in favour of a customer at Calcutta. Then there were no sales in December to March '70, according to the returns filed. Thus, for 1969-70, the assessee had shown a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailure to use the goods for the purposes referred to in that clause was without reasonable excuse, the conclusion that the offence under that clause held been committed would be unsupportable. In the present case, the assessee could not have foreseen or anticipated as to which goods that were purchased and manufactured would be utilised in the works contract and which would be sold. It is not as if that the assessee has not sold any of the goods manufactured after purchase of the goods under the cover of 'C' forms. Thus, there is no positive proof that the assessee has intentionally failed to use the goods manufactured for the purpose for which they were purchased. Therefore, we are of the opinion that the assessee cannot be said to have co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
