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TMI Blog2001 (2) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,640 and sales tax was paid only on that amount. It was also found that the dealer made purchases of beer from M/s. SICA Breweries Limited, Pondichery, and they were sold to M/s. Bhanu Enterprises, Vijayawada. It was also found that the dealer again purchased the said beer from M/s. Bhanu Enterprises almost at the same price and sold at a higher price. Similar sales and purchases were also effected by M/s. Bhanu Enterprises, Vijayawada, which show that the transactions were effected only by book entries, showing the purchase and sale. According to the Deputy Commissioner, this is a devise adopted by the dealers to evade payment of tax on the first sales turnover. Hence, ignoring the said transaction of sale in favour of M/s. Bhanu Enterprises, the differential turnover of Rs. 1,75,860 was subjected to tax. Consequently, the Deputy Commissioner had also initiated proceedings under section 14(8) of the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to the Act ) and levied penalty of Rs. 60,936 as it is a case of wilful suppression of sales turnover, which was three times the tax that was due as a result of the reassessment. This order was questioned by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 14(4) was only under section 14-B and as the provisions of section 14-B have no retrospective effect, the action of the authorities was set aside. Hence, even in the present facts of the case also the impugned orders are liable to be set aside. 4.. The learned Government Pleader, on the other hand, supported the orders of the Sales Tax Appellate Tribunal. It was contended that the Tribunal has thoroughly examined the facts of the case and confirmed the penalty levied by the Deputy Commissioner (CT), Vijayawada. It is stated that there are clear findings in the assessment proceedings that the petitioner-firm as well as M/s. Bhanu Enterprises are closely related as the managing partner was one and the same, which was carrying on the similar business. Though there may be some partners, who are not common, still the business is common carrying on in the same trade and carried on from the same premises and transactions were effected from one firm to the other and again a second transfer in respect of the very same goods, which shows that the action of the petitioner-dealer was only a colourable exercise to avoid the higher tax liability by showing a lesser turnover on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be set aside. 7.. For convenience sections 14(4) and 14-B are extracted here, which are as under: 14. Assessment of tax. ................ (4) In any of the following events, namely, where the whole or any part of the turnover of a business of a dealer has escaped assessment to tax, or has been under-assessed or assessed at a rate lower than the correct rate, or where the licence fee or registration fee has escaped levy or has been levied at a rate lower than the correct rate, the assessing authority may, after issuing a notice to the dealers, and after making such enquiry as he may consider necessary, by order, setting out the ground therefor, (a) determine to the best of his judgment the turnover that has escaped assessment and assess the turnover so determined; (b) assess the correct amount of tax payable on the turnover that has been under-assessed; (c) assess at the correct rate the turnover that has been assessed at a lower rate; (cc) assess the correct amount of tax payable, in a case where any deduction or exemption has been wrongly allowed; (d) levy the licence fee after determining to the best of his judgment the turnover on which such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Deputy Commissioner that he had taken into account the market price and not the actual price at which the petitioner-assessee had sold the disputed goods. In fact, the very same contention was advanced by the assessee in the assessment proceedings when he filed an appeal before the Appellate Tribunal against the reassessment order. The said contention was rejected by the Tribunal and in fact, it was also confirmed by this Court while dismissing the tax revision case filed by the assesseedealer. Though in fact, the assessment proceedings as well as the penalty proceedings are independent, the finding given with reference to the application of the provisions, there cannot be any two arguments and two findings. Therefore, it is not open to the assessee to contend that the said finding arrived at the earlier proceedings is not applicable to the present penalty proceedings. 9.. Though the learned counsel for the assessee relied upon a decision of this Court in the case of Delux Wines [1990] 77 STC 373 that was a case where notices were issued on the ground that the sales were effected at a lower rate than the market price. Therefore, the court held that the said notice thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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