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TMI Blog1988 (4) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... ,109.70 but dismissed the appeal in respect of the remaining turnover included by the assessing authority in the reassessment order. T.R.C. No. 20 of 1985 is directed against the order of the Tribunal in T.A. No. 433 of 1981, relating to assessment year 1975-76. The said appeal was preferred by the assessee against the order of the Assistant Commissioner (CT) (Appeals), Guntur, in Appeal No. 130/80-81 dated April 24, 1981, confirming the assessment made by the Commercial Tax Officer, Tanuku, in Assessment No. 3623/75-76 dated November 30, 1979. The Tribunal dismissed the appeal preferred by the assessee. T.R.C. No. 8 of 1985 has been filed by the assessee against the order of the Tribunal in T.A. No. 432 of 1981, relating to assessment year 1973-74. The appeal to the Tribunal was preferred against the order of the Assistant Commissioner (CT) (Appeals), Guntur, in Appeal No. 119/80-81 dated April 24, 1981, reducing the penalty from Rs. 32,485 to Rs. 12,994, and thus modifying the order of the Commercial Tax Officer, Tanuku, in P.R. No. 7/78-79 dated April 10, 1979, in respect of the assessment year 1973-74. The Tribunal in its order under revision reduced the penalty from Rs. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have deleted the entire additions in a sum of Rs. 23,843 as well as Rs. 47,677.61 for the same reasons for which it deleted those additions to the extent of Rs. 29,109 there being any hardly distinguishing features between the slips covered by that amount of Rs. 29,109 and the remaining slips involved in these two additions. It is pointed out that the Tribunal erred in basing its conclusion on slips and patties that were not recovered from the business premises of the assessee or from the possession of any person connected with the firm and especially when the assessee was denied an opportunity to crossexamine Sri Satti Suri Reddy who supplied those slips and patties. The assessee had made a request, before the death of the said Satti Suri Reddy for an opportunity to cross-examine him. On the other hand, Sri A. Venkata Ramana, the learned counsel for the department, has contended that the findings of the Tribunal are the findings of fact and there is no error of law. He further submitted that the findings are supported by positive evidence as well as considerable circumstantial evidence and there are no grounds made out for interference in this revision. We are of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice on February 9, 1979, the said Satti Suri Reddy had died in September, 1978. It was, therefore, impossible for the assessing authority to produce the said Satti Suri Reddy for cross-examination. The submission that there is no evidence for the department for relying upon the letter of the said Satti Suri Reddy dated August 10, 1976, is not correct. If Satti Suri Reddy were alive, he would have been examined but once he died, any statement given by him in his letter above referred to becomes evidence being the statement made by a person who had since died and the information furnished along with the letter becomes prima facie evidence against the assessee. It was for the assessee to have produced any further evidence in rebuttal to the above statement of late Satti Suri Reddy. At pointed out by the Tribunal, the assessee did not produce any such evidence. The Tribunal pointed out that in the explanation furnished by the assessee, he did not even care to refer in detail to the various facts mentioned in the show cause notice but simply denied that the material related to the firm. The statement of late Satti Suri Reddy was, prima facie, evidence against the assessee. Even ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or could have examined him even before the issuance of the show cause notice cannot be accepted. Nor is the decision in Kalra Glue Factory v. Sales Tax Tribunal [1987] 66 STC 292 (SC) [1987] 167 ITR 498 (SC), attracted to the facts of the case. That was also a case where the Supreme Court laid emphasis regarding opportunity to be given for cross-examination. For the reasons stated above, the said decision does not apply. We, therefore, do not find any reason to interfere with the addition of Rs. 23,843. Coming lastly to the addition by the assessing authority of a sum of Rs. 47,677.61, it may be noted that the Tribunal gave relief in a sum of Rs. 29,109.70. The slips to the above extent, the Tribunal found, could not be connected with the assessee. The slips did not contain the names of the ryots-principals or the name of the assessee-firm or the signature of the authors of the slips. The slips which were recovered by the Income-tax Department were not fully accepted by the Tribunal. We cannot agree with the contention that the remaining turnover in this behalf should have also been deleted. The Tribunal had made the necessary effort to examine each of these slips and it had com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.96 consisted of three items: (1) Rs. 14,014 added on the basis of the inspection made by the Commercial Tax Officer on July 17, 1976; (2) Rs. 11,997.89 added on the basis of the patties and slips sent by Satti Suri Reddy to the department; (3) Rs. 46,517.07 added on the basis of the slips that were available with the Income-tax Department. So far as the three types of additions comprising a total amount of Rs. 72,528.96 are concerned, the learned counsel for the petitioner has raised the same contentions which he has raised in regard to similar additions in the subject-matter of T.R.C. No. 343 of 1985. We shall take up the addition of Rs. 14,014 separately, a little later. In regard to the other two additions in the sums of Rs. 11,997.89 and Rs. 46,517.07, the arguments of the learned counsel for the petitioner are the same as those advanced in connection with the similar additions for the year 1973-74 which we have dealt with while disposing of T.R.C. No. 343 of 1985. The additions, being either on account of slips sent by Satti Suri Reddy or of slips that were available with the Income-tax Department, were, in our opinion, properly added to the turnover of the assessee and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of inspection nor the order of the Commercial Tax Officer compounding the offence to show that the assessee did not make any admission as stated in the order of the Tribunal. We are not prepared to accede to the contention that the statement of fact made in the Tribunal's order is wrong unless necessary material is produced before us to show that the statement of fact is incorrect. In this connection, we may point out that section 32 of the Act provides for the composition of offence. It states that the prescribed authority may accept, from any person who has committed or is reasonably suspected of having committed an offence under the Act, by way of composition of such offence: (a) where the offence consists of failure to pay or the evasion of any tax recoverable under this Act, in addition to the tax so recoverable, a sum of money not exceeding Rs. 1,000 or double the amount of tax recoverable which is greater, and (b) in other cases a sum of money not exceeding Rs. 1,000. In our view, having regard to the above provisions and the statement of facts mentioned in paragraph 5 of the order of the Tribunal, it must be presumed that the assessee made an admission before the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified therein. Accordingly, it is argued that the assessee had taken delivery of the consignments from the railway, distributing the stocks among itself and other allottees as per the allotment made by the area office, Vijayawada, and remitting the sale proceeds together with freight and tax to the said area office. The relative invoices were sent by the area office to the assessee under covering letters dated January 7, 1976, January 9, 1976, January 23, 1976, January 24, 1976 and March 1, 1976. According to the learned counsel, the local office of the Fertiliser Corporation of India to whom the goods were assigned by the head office must be treated as having effected the sale of goods within the A.P. State, to the assessee and other dealers, as per the allotments made by it and that those sales were the first sales within the State. Accordingly it is argued that the assessee is not the first seller. The sales made by the assessee and other allottees of the quantities allotted to them were secondary sales not exigible to tax. This contention was rejected by the Tribunal which found the following facts: The Tribunal examined the letters as well as the invoices and the record. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manure Depot, Dharmajigudem West Godavari District Co-operative Marketing Society, Eluru 120 " M/s. Ch. Krishnamraju, Ganapavaram 80 " M/s. Sri Padma Fertilisers Pesticides, Bhimavaram 60 " M/s. Sri Lakshmi Narayana Fertilisers, Kallakuru 60 " --------- 483 bags --------- You should raise the bills at Rs. 2,140 per metric tonne plus Andhra Pradesh general sales tax for the quantity delivered." From the above letter, it is clear that the area office at Vijayawada informed the petitioner that one wagon was despatched to Tadepalligudem to the account of the petitioner on January 14, 1976 and the documents have been negotiated through the petitioner's bankers. The petitioner is to retire the documents and arrange to supply the material not only to himself (in a quantity of 120 bags) but to five other dealers in respect of the remaining quantity of 363 bags, in all 483 bags. The assessee was also directed to raise bills at the rate of Rs. 2,140 per metric tonne plus Andhra Pradesh general sales tax for the quantity delivered. A copy of the invoice dated January 14, 1976, of the Fertiliser Corporation of India has also been placed before us and it clearly corroborates t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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