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TMI Blog2009 (10) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it proper to consider the evidence produced by the first respondent while coming to the conclusion. Appeal dismissed. - W.P. No. 6513 of 2000 - - - Dated:- 26-10-2009 - RAVIRAJA PANDIAN K. AND SUNDRESH M.M. , JJ. ORDER:- The order of the court was made by M.M. SUNDRESH J. The petitioner herein has filed the present writ petition seeking the relief to call for the records of the second respondent made in S.T.A. No. 41 of 1998 dated March 15, 1999 and to quash the same. The brief facts of the case in a nutshell are as follows: The first respondent in the writ petition is a dealer in stainless steel utensils and an assessee under the Act. For the assessment year 1992-93, the first respondent was assessed by the Commercial Tax Officer on a total and taxable turnover of Rs. 1,06,17,514 and nil, respectively. Thereafter based upon the inspection made by the enforcement wing, the Commercial Tax Officer revised the assessment and refixed the total and taxable turnover of the assessee for a sum of Rs. 4,50,74,466 and Rs. 3,43,96,952, respectively. The entire taxable turnover was assessed to tax at eight per cent and penalty of Rs. 41,27,634 was levied. Challenging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition will have to be set aside. The learned Special Government Pleader also submitted that if the documents filed by the first respondent are eschewed then there is no materials for the second respondent to come to the decision as found in the impugned order. Therefore it is submitted by the learned Special Government Pleader that the proceedings of the second respondent will have to be set aside. In other words by avoiding the additional documents filed by the first respondent and with the available materials on record, the appeal filed by the Department before the second respondent will have to be allowed. Per contra, the learned counsel for the first respondent submitted that the documents have been filed during the pendency of the first appeal by the first respondent and at that point of time there was no objection by the petitioner. It is only before the second respondent such a plea was raised. Even before the second respondent the very same documents have been filed. It cannot be said that the second respondent does not have the power to peruse the documents for the purpose of proper adjudication. Moreover inasmuch as the said documents have been found to be genu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness. Similarly of a reading of clause (2) would make it clear that the Appellate Assistant Commissioner shall not receive the said evidence for the first time in the appeal unless for the reason to be recorded in writing to the effect that the said documents are genuine and the failure to produce the same before the assessing authority was for the reasons beyond the control of the dealer. The said embargo appears to have been incorporated only in order to see that the assessee should not be allowed to recast his accounts by plugging the holes pointed out in the assessment order. In the present case on hand what was produced before the Appellate Assistant Commissioner were the documents relating to the transactions between the dealer and the third parties. It is not the case of the Department that the said documents filed by the first respondent are pertaining to the day-to-day transaction of the first respondent and they are not genuine. If that is the position then the provision of section 39B of the TNGST Act, 1959 in our considered opinion do not apply to the present case on hand. Therefore, the contention of the learned Special Government Pleader that the admission of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any presumption, yet even tax laws are governed by the wellknown doctrine that justice should not only be done, but should also seem to have been done. In the instant case, the contention of the assessee throughout was that, when he took over the assets of Manohara Wines, a turnover to the tune of Rs. 8,275.11 had already suffered tax, in the sense that his transferors had paid the tax, and that, therefore, the sales effected by him could only be second sales and should be dealt with as such. This was his specific case before the assessing authority and the Appellate Assistant Commissioner. We have already referred to the fact that entries and extracts from the books of account of Manohara Wines were with Appellate Assistant Commissioner, but, for reasons not known nor clear, he did not take the trouble of finding out whether the contention of the assessee was true or not; but, in a blanket order passed by him he was of the view that there was no evidence to substantiate the dichotomy claimed by the assessee that he was entitled to exemption as prayed for. Finding that, as the only way of proving his case, which was always consistent, was to enlighten his contention, the assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Tribunal as is sought to be contended by the learned Additional Government Pleader. We are therefore of the view that, in the peculiar circumstances, the Appellate Tribunal can have and, in our view, has, the requisite power to find out whether any register, record, account book or document produced before it is genuine so as to find out whether the assessee is entitled to certain concession or benefit under the Act. It is pertinent to observe at this stage that the assessee had already produced the relevant bills under which Manohara Wines had purchased the disputed stock from Ajantha Wines, and the learned Additional State Representative, after verification of such records, was satisfied that in respect of the disputed stock sales tax had already been collected. This factor cannot lightly be ignored and the assessee directed to suffer tax when he is legitimately not liable to submit to the levy. In this view, we accept the order of the Tribunal and dismiss the tax case. The honourable Division Bench of this court has observed that it cannot be said that the Tribunal is precluded from looking into evidence produced by the assessee in order to find out whether it is genui ..... X X X X Extracts X X X X X X X X Extracts X X X X
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