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TMI Blog2007 (9) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... ual time addition and penalty, do not call for any interference. Hence, the writ petition is dismissed. No costs. - W.P. No. 20148 of 2007 - - - Dated:- 13-9-2007 - MANIKUMAR S. , J. ORDER:- S. MANIKUMAR J. The petitioner has challenged the order of the Sales Tax Appellate Tribunal, the first respondent herein, in T.A. No. 389 of 2001 dated January 3, 2007 as illegal and invalid. Brief facts leading to the writ petition are as follows: The petitioner is a dealer in timber and had reported a total and taxable turnover of Rs. 1,15,17,950 and Rs. 15,76,613 respectfully in the returns filed for 1992-93. The place of business of the petitioner was inspected on January 4, 1993 and stock discrepancy to the tune of Rs. 80,913 was allegedly noticed at the time of inspection. Treating the said turnover as suppression, the petitioner was finally assessed on a total and taxable turnover of Rs. 1,16,79,776 and Rs. 17,38,439, respectively, as per proceedings, dated September 26, 1994. The assessment was completed after verification of the books of accounts and the account books was also signed on June 28, 1994. Subsequently, the second respondent held that the petitioner ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner was not able to prove the physical stock of goods and for that matter, sales suppression on the part of the dealer cannot be alleged, since the goods were admittedly accounted in the books of account, maintained by the petitioner in the course of business. Learned counsel for the petitioner further submitted that the question of making equal addition does not arise as per the decision of the Tribunal in T.A. No. 4 of 2002 dated August 2, 2005 and levy of penalty under section 16 of the TNGST Act is without jurisdiction. He further submitted that penalty cannot be levied for the amounts representing surcharge, additional surcharge and additional sales tax as per the decision of this court in S.P. G. Ramasamy Nadar Sons v. Commercial Tax Officer-III, Virudhunagar reported in [2004] 136 STC 606. Placing reliance on the decision in Binani Industries Limited v. Assistant Commissioner of Commercial Taxes, VI Circle, Bangalore reported in [2007] 6 VST 783 (SC), learned counsel for the petitioner submitted that at the time of passing the original assessment by the second respondent, the entire materials were available and therefore, it is not open to him to revise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Utham Prabhat Industries v. State of Tamil Nadu in T.A. No. 4 of 2002, dated August 4, 2005, the contention of the appellant therein was that the stock discrepancy was unjustified on facts and it was due to incorrect stock verification. The appellate authority, taking into consideration of entire fact situation and the details such as opening stock, purchases, freight charges incurred, labour charges paid and physical stock for arriving at an excess stock, deleted the equal-time addition. Whereas, in the instant case, on perusal of records, the assessing authority had arrived at the actual suppression on the ground that there is a mala fide intention of the petitioner to suppress the factual figures by furnishing two different opening stocks at different points of time as stated above. Further, even though the petitioner was given sufficient opportunity to produce the bills to show that their accounts are correct, they failed to prove the same before the appellate authority also. Best judgment assessment can be made based on facts when it is found that the account books of the dealer cannot be accepted. On its face value, as there was contradiction in the inspection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al on records. If fresh materials are brought on record or if there was something to show that the assessee had concealed some material from the assessing officer, then the application of mind to new facts or materials by the assessing officer cannot be said to be mere change of opinion. In Lakshmi Vilas Bank Ltd. v. Commissioner of Income-tax reported in [2006] 284 ITR 93, this court held that no Tribunal on fact has any right or jurisdiction to come to the conclusion contrary to the one reached by another bench of the same Tribunal on the same facts. In the reported case, the assessee was a scheduled bank. For the assessment years 1985-86 and 1986-87, the assessee-bank held Government securities as stock-in-trade. While computing the taxable income, the fall in the market value was claimed by the bank as deduction, which was not allowed by the assessing officer. Aggrieved by the order of the assessing officer, the assessee filed an appeal before the Appellate Assistant Commissioner, who allowed the case of the assessee. Against the said order, the Revenue filed an appeal before the Tribunal and the Tribunal held that the assessee was holding Government securities as investm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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