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TMI Blog2007 (11) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... element and on such payment, the appellate authority shall consider the issue afresh. Appeal allowed and the matter is remitted back to the appellate authority to dispose of the appeal in accordance with the statutory provisions, within a period of six weeks from the date of receipt of a copy of this order. - W.P. No. 33350 of 2007 - - - Dated:- 6-11-2007 - MANIKUMAR S. , J. S. MANIKUMAR J. The petitioner has sought a writ of certiorarified mandamus to call for the entire records of the second respondent in A.P. No. 108 of 1999 and quash the order passed therein, dated December 4, 2003 and consequently direct the second respondent to dispose of appeal in A.P. No. 108 of 1999 on merits and in accordance with law after granting reasonable opportunity of being heard to the petitioner. The case of the petitioner is as follows: The petitioner is a registered dealer on the files of the first respondent under the Tamil Nadu General Sales Tax Act, 1959 and dealing in timbers and plywoods. For the assessment year 1990-91, the petitioner reported a total and taxable turnover of Rs. 65,13,540.65 and the assessment was completed by the first respondent vide order in TNGST 193005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment, copies of the same ought to have been furnished to the petitioner so as to enable them to cross-examine the said witnesses. When the appeal before the second respondent under the Sales Tax Act was pending consideration, the appeal filed by the petitioner under the Income-tax Act was allowed by the Commissioner of Income-tax (Appeals), vide order, dated March 31, 1998 holding, inter alia, that in view of the contradictory statements of the witnesses, no inference can be drawn solely based on their statements, and, therefore, the allegation that the petitioner manufactured various qualities of plywoods was also not proved. The petitioner further submitted that the appeal filed by them before the CEGAT was allowed on March 13, 2001, on the ground that there has been violation of the principles of natural justice and that the petitioner was not given adequate opportunity to cross-examine the witnesses. Be that as it may, in the appeal before the second respondent, the learned counsel for the petitioner vide his letter dated September 16, 2002 reported no instructions, as he was not in touch with the petitioner. The final summon issued by the second respondent on November ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is an error apparent on the face of the record by resorting to revision of assessment under section 16 of the TNGST Act. Therefore, learned counsel for the petitioner submitted that in the absence of any escapement of turnover and when the actual sales transactions were already accounted for, the impugned order of assessment under section 16 of the TNGST Act is without jurisdiction. Mr. R. Mahadevan, learned Additional Government Pleader (Taxes), was put on notice and heard. He submitted that when the assessing officer had information to the effect that the petitioner had undervalued the goods, a pre-revision notice was issued to the petitioner and on the basis of the materials, total taxable turnover was arrived at, and tax and penalty were levied. Referring to the impugned order of the appellate authority, learned Additional Government Pleader submitted that though the assessment relates to the period 1990-91 and more than 50 adjournments were granted, the petitioner was not willing to go along with the appeal and, therefore, final summons were sent to the learned counsel for the petitioner on two occasions. When the learned counsel for the petitioner, vide letter, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m as suppressions under the Tamil Nadu General Sales Tax Act, 1959 for the year 1990-91: 1. Details of removal of veneers without payment of duty during the year 1991 . . . Rs. 3,07,914 2. Value of money realised in excess over the bill value by adoption of undervaluation, during 1991 . . . Rs. 98,67,899 3. Local sales made to Tvl. Duoesty Madras and payments received by cheque No. 269444, dated December 26, 1990 not billed and accounted for . . . Rs. 49,820 Total unaccounted transactions The assessing officer came to the conclusion that there was total suppression of transactions to the tune of Rs. 1,02,25,633 and on revision, re-determined the total and taxable turnover under section 16 of the . . . Rs. 1,02,25,663 TNGST Act at Rs. 1,68,50,585. Section 12A of the TNGST Act contemplates that if the assessing authority is satisfied that a dealer has, with a view to evade the payment of tax, shown ..... X X X X Extracts X X X X X X X X Extracts X X X X
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