9911796707
TMI Blog1995 (9) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... abovesaid assessment order dated January 2, 1986 is as follows: (a) The assessee was originally assessed to a total and taxable turnover of Rs. 1,37,02,384.31 and Rs. 14,45,484.97 respectively by the Commercial Tax Officer in his proceedings dated March 7, 1984. However it was found by the Revenue that 74 numbers of Honda portable generators were consigned to the assessee-dealer by Perfect Power Systems, New Delhi (vide their three delivery challans bearing Nos. 223, 224 and 225, all dated January 3, 1983). Then, when the dealers were questioned as to whether the receipt of the said Honda generators were accounted by them, the dealers not only denied the purchases, but also said that the goods were not intended to them. Then the matter was investigated by the abovesaid Inter-State Investigation Cell. Their officers contacted at Delhi, the abovesaid Perfect Power Systems on August 29, 1984 along with the Sales Tax Officers of New Delhi and verified their accounts. It was found that the dealer-assessee had booked 80 numbers of the abovesaid generators from Madras to Delhi through Transport Bombay Okara Cargo Movers (P) Ltd., in L.R. 1055, dated February 12, 1983. On enquiry, Shiv M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Perfect Power Systems at Madras. The said reply by the assessee was considered by the assessing officer but however the abovesaid assessment including levy of penalty was made. 4.. However, on appeal by the assessee, the Appellate Assistant Commissioner deleted the assessment and levy of penalty on the following reasoning: From the investigation conducted by the Enforcement Wing Officers, it was found that Perfect Power Systems, Delhi, had despatched 74 numbers of generators (vide Challan Nos. 223 to 225 dated January 3, 1983) through Prakash Roadlines (P) Ltd. (vide L.R. Nos. 899659, 899658 and 899660 dated January 3, 1983). The delivery challans were sent in the name of the assessee. The assessee's business premises was inspected on January 21, 1983 and after examination of the accounts with reference to the bills received, the inspecting officials found that the abovesaid purchase of generators had not been passed through their regular accounts. The statement of Rajesh Malhotra, a partner of the assessee informed the officials that the said generators were not taken delivery by the assessee. The way-bills available show the consignee's name as "Perfect Power Systems" only. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that the generators have not been dealt with in Tamil Nadu at all in any form by the assessee. The Joint Commissioner erred in his inference that the gate pass produced by the assessee did not indicate the place of despatch. This gate pass was issued by the Delhi office of the transporter to Perfect Power Systems to enable them to take delivery of the goods at Delhi. It also clearly indicates the way-bill L.R. No. 1055 and also mentions that the packages were 80 generators. It also shows the freight charges, octroi, etc. The burden is on the department to show by positive evidence that the assessee has effected sale of the abovesaid 80 generators locally at Madras and this burden has not been discharged. At the earliest stage, in reply to the pre-assessment notice, the assessee had clearly stated that the goods were not taken delivery of by them at Madras and so, the representative of Perfect Power Systems himself was obliged to rebook the generators to Delhi. 8.. On the other hand, learned Additional Government Pleader (Taxes) appearing for the Revenue very much relies on the abovesaid three delivery challans when the goods were sent initially from Delhi to Madras. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax or penalty thereon. In other words, according to the said learned counsel, the department has not discharged its burden to prove this alleged latter local sale under the Act. According to the assessee the abovesaid 74 generators originally were sent from Delhi to Madras by the abovesaid Perfect Power Systems of Delhi and its representative at Madras took delivery of the said goods at Madras and when he found that the assessee was not willing to purchase the same and that there was no ready market at Madras for the sale of the said generators, transhipped it back to Delhi to Perfect Power Systems. According to the assessee, the relevant consignment note dated February 12, 1983 of Bombay Okara Cargo Movers (P) Ltd., which transported the abovesaid 80 generators from Madras to Delhi, the gate pass dated March 2, 1983, the abovesaid carrier's bill No. 1503 dated March 2, 1983 relating to transport charges and also the certificate from carriers dated August 20, 1984 stating that those generators were delivered to Perfect Power Systems and the advocate's letter dated December 28, 1984, all show that the abovesaid 80 generators were given back to Perfect Power Systems at Delhi. 10.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, which alone is the subject-matter in this appeal. On the other hand, the assessee has produced the above referred to documents, viz.: 1.. The above referred to carrier, Bombay Okara Cargo Movers (P) Ltd.,'s consignment note (L.R. or G.R. No. 1055) dated February 12, 1983, which shows consignor and consignee, only as Perfect Power Systems, with reference to the abovesaid 80 generators. 2.. Gate pass dated March 2, 1983 of the said carrier referring to the abovesaid G.R. No. 1055. 3.. The said carriers bill dated March 2, 1983 for the freight and octroi charged for the transport of the said 80 generators from Madras to Delhi. 4.. Letter from the said carriers to Perfect Power Systems, Delhi, dated August 20, 1984 confirming the delivery of the said goods at Delhi. 5.. The Advocate Mr. S.K. Kapoor's letter dated December 28, 1984 to the Sales Tax Officer, Vigilance and Enforcement Branch, Sales Tax, New Delhi, stating about the receipt of the abovesaid goods at Delhi pursuant to the abovesaid G.R. No. 1055. All these clearly shows that the abovesaid 80 generators were delivered back to Perfect Power Systems at Delhi. 13.. Even the assessing officer's order observes as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Sales Service Co. (assessee). But, actually the abovesaid consignment Note No. 1055 (L.R. 1055) only shows both consignor and consignee therein as same, namely the aforesaid Perfect Power Systems, Delhi. 15.. So, the Joint Commissioner's order stating that there is no corroborative evidence to link the receipt of 80 generators at Delhi, cannot at all be sustained in the light of the above referred to documents. If the said goods have been returned to Delhi, thus, the Revenue cannot contend that the assessee has effected sale of those goods within the State of Tamil Nadu, under the Act. 16.. No doubt, learned Additional Government Pleader (Taxes) also sought to argue that the assessee has not produced any material to correlate the abovesaid 80 generators alleged to have been despatched to Delhi as those that were originally sent from Delhi to Madras by Perfect Power Systems to the assessee. But, such a plea or reasoning has not been advanced at all by the Joint Commissioner. So, we cannot entertain such an argument from the said learned counsel for the first time before us. 17.. The net result is, we have no other alternative except to hold that the Revenue has not disc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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