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TMI Blog2008 (11) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... on the above facts, the answer to the question No. (1) is answered in the negative and against the assessee and question No. (2) is answered in favour of the assessee and the imposition of levy of penalty is set aside and the tax case (revision) is partly allowed. - 734 of 2006 - - - Dated:- 10-11-2008 - PRABHA SRIDEVAN AND SASIDHARAN K.K. , JJ. ORDER:- The assessee is a dealer in iron and steel. The total and taxable turnover reported by him in the form A1 returns was not accepted. There was an inspection and inspecting authorities noticed a stock variation. Two times addition was made to the value of stock variation and penalty was imposed. Certain records, in particular, books marked B, C and D as well as nine slips were recovered. To the value of alleged suppression relating to this, addition was made and penalty was also imposed. For want of declaration forms, a sum was disallowed and brought to tax. The Appellate Assistant Commissioner (CT) remitted that portion of the order relating to slips for de novo verification, but confirmed the original authority's order in all other respects. On appeal, the Tribunal held that the stock variation was negligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that there was a detailed discussion by the Tribunal for arriving at the finding of suppression and it was only a question of fact. As regards penalty, he submitted that all the records were recovered only during inspection and so there was wilful suppression. He relied on Commissioner of Sales Tax, U.P. v. Girja Shanker Awanish Kumar [1997] 104 STC 130 (SC). (a) The Tribunal has considered the records produced and discussed the entries in detail. The Tribunal has looked book B page by page and found, Consequently, in so far as the book marked 'B' is concerned, the suppression at 39.321 MTs shall be adopted on a value of Rs. 2,94,908 as against 62.596 MTs, adopted by the learned assessing officer for a value of Rs. 4,68,184. (b) For book C, the Tribunal has accepted the assessee's plea that while computing the production details as available in the records, the stock in R.G. 1 register from previous day has not been considered. So the Tribunal deleted 6 MTs. Then page by page this book has been seen and it was found, Consequently, the suppression at the rate of Rs. 7,500 per MT shall be reckoned at Rs. 11,07,229 only as against Rs. 12,40,818. (c) As far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus (at page 125): 9. In the instant case it is found that the incriminating documents recovered at the time of inspection and the account books were tallied and verified by the officers as well as the representative of the State before the Appellate Assistant Commissioner. It was found that the entries in the pocket note book tallied with the entries in the account book except for the omission of the entries amounting to Rs. 58,110, which reflected the amount received by the assessee by way of premiums for the sale of the goods. The assessee did not dispute that the amount had been received. The assessee did not even dispute the entries made in the pocket note book. The case of the assessee was that the amount of premiums collected by it were for the priority supplies of goods and would not form part and parcel of the sale amount. The plea of the assessee was not accepted by the statutory authorities including the Tribunal. But the explanation of the assessee cannot be ignored while considering the exercise of discretion by the Tribunal for deleting the penalty levied under section 12(3) of the Act. The explanation which did not find favour could have been based on a mistak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is some substance in the submission that, While computing the production details as available in the recovered records, the stock brought forward in the R.G. 1 register from the previous day has not been considered. and accepting this, the Tribunal has deleted the alleged suppression to the extent of 6 MTs. As regards the alleged suppression even the stand of the Revenue is that the theory of entering the production details on the next day withers into insignificance because on many dates the production entry and the R.G. 1 entry tally on the same date . So on facts the production details show discrepancies only on some dates and on many dates they tally. According to the assessee, on some occasions the entry would be made by the person on the spot at the shift and the next date the correct entry would be made, and that on this account there are variations on some dates, and that the very fact that the entries tally on many dates would show that there was no intention to suppress. In fact even the Tribunal held that the stock variation was negligible compared to the available stock, and that is why the Tribunal granted relief in that regard. So actually this is a case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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