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TMI Blog1995 (10) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment year 1981-82 and a sum of Rs. 47,523 and Rs. 7,710 were levied as penalties. 2. For the assessment year 1983-84 in the course of original assessment proceedings a sum of Rs. 9,22,847 was estimated as first sales of stainless steel articles and a sum of Rs. 90,279 was levied as penalty under section 12(3) of the Act on the basis of the inspection conducted by the enforcement wing. The main objections to the above proceedings for the three years by the assessee were that there was no basis known to law to revise the assessments for the first two years, that the burden of proof of escapement of turnover for the first two years was not discharged by the Revenue that the accounts recovered did not contain any sales or purchases, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for the assessee submitted that according to the decisions of this Court in Deputy Commissioner of Commercial Taxes v. Subramaniam Chettiar [1977] 40 STC 434, the burden of wilful escapement of turnover is on the Revenue and the said burden was not discharged. The entries for the materials recovered did not speak about any sale or purchase or any goods dealt with by the assessee. The assessee was deprived of their opportunity to cross-examine the persons whose names were entered in some of the entries, and there was no legal basis to estimate and levy penalty ignoring the proper assessment granting exemption of second sales in the original assessment. 4.. The entries themselves could not make or justify any sales and assessments under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re sufficient to complete the assessment and for levy of penalty, the department need not go further and prove the genuineness of transaction done by the assessee. The Appellate Assistant Commissioner on considering the facts arising in this case reduced the assessment as well as the penalty to a great extent. The assessee cannot expect further deduction from the assessments and the penalty levied in these assessment years under consideration. 6.. We have heard the rival submissions. In the assessment year 1981-82 the assessing officer on the basis of entries available in the records during inspection on July 2, 1983 determined the total taxable turnover at Rs. 77,094 and assessed the entire turnover to tax at 10 per cent as first sales o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3] 52 STC 279 (Mad.) (State of Tamil Nadu v. Thangadurai). Accordingly, the assessee pleaded for the total cancellation of the penalty. The assessment was made on the basis of the records secured. Considering the submissions made by the assessee, the Appellate Assistant Commissioner has reduced the turnover as well as the penalty. The sales suppressions are confirmed, with reference to first sales. Only 50 per cent of the turnover has been sustained by the Appellate Assistant Commissioner and the Appellate Tribunal. The Tribunal also pointed out that the decisions relied on by the assessee are not applicable to the facts of this case. The case on record would go to show that the Appellate Assistant Commissioner has already taken a lenient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal the sustenance of assessment at 10 per cent on a turnover of Rs. 2,63,687 and the penalty of Rs. 11,838. Following the reasons given by the Tribunal in the appeal relating to the assessment year 1981-82, in this assessment year also the Tribunal confirmed the order passed by the Appellate Assistant Commissioner. 10.. The department filed an enhancement petition for restoration of an addition of Rs. 6,59,160 involving a tax of Rs. 65,788 ordered as relief in the appellate orders of the Appellate Assistant Commissioner and also for enhancement of penalty by Rs. 78,441. 11.. The department submitted that the slips and the pocket note recovered would reveal that there was suppression of sales and also purchase of stainl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the reasons given by the Appellate Assistant Commissioner or determining the taxable turnover and for reducing the penalty. In [1986] 63 STC 86 in the case of Deputy Commissioner (CT) v. Venkatesan, this Court held as under: "That the mere fact that the assessee had not maintained accounts at all cannot be taken advantage of by the assessee to get away from the clutches of section 12(3) of the Tamil Nadu General Sales Tax Act, 1959. Even if the assessee is entitled to exemption, he has to maintain accounts and submit a return disclosing the turnover but claiming exemption under the notification as in the event of his claim for exemption being negatived, his purchases and sales will have to be scrutinised for the purpose of assessment. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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