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TMI Blog2009 (8) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... law was framed. Whether, on the facts and in the circumstances of the case, the transportation charges, which were separately charged, are liable to be taxed under the Act? Mr. Paikray, learned counsel appearing for the petitioner, submitted that the petitioner was assessed under section 12(8) of the Orissa Sales Tax Act for the years 1984-85 and on a finding that the petitioner had adopted colourable devices to avoid tax liability on transportation charges collected by it enhancing the turnover thereon Rs. 1 lakh and recomputing the tax payable as well as levy of penalty thereon amounting to Rs. 52,080. The petitioner preferred an appeal against the aforesaid order of assessment under section 12(8) of the OST Act and the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... originally not disclosed the transportation charges received by him in his original returns and was assessed under section 12(4) of the Act. In view of the fact that suppressed turnover was detected, the petitioner was assessed under section 12(8) and the assessing authority came to a finding that since the petitioner had suppressed receipt of transportation charges, its gross turnover was enhanced and the tax and penalty was levied thereon. The learned counsel for the Revenue further asserts that since the petitioner had suppressed the turnover and the transportation charges received by it, it cannot be permitted to claim deduction under section 5(2)(A)(a) of the Act. In response to the aforesaid contentions, learned counsel for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s taxable income and the consequential tax liability. Merely because the assessee fails to claim the benefit of a set-off, it cannot relieve the Income-tax Officer of his duty to apply section 24 in an appropriate case. On consideration of the submissions advanced by the learned counsel for both the parties, we find from the first appellate order that the appellate authority came to the following findings: In the instant case there is a contract, the purchase order which stipulates as follows: Cost of metal Rs. 60.00 per cum Sales tax Rs. 4.80 per cum T.O.T. . . . Rs. 0.32 per cum Transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the assessee's taxable income and thereafter, the tax liability. Merely because the assessee failed to disclose any particular part of turnover does not amount to relieving the statutory authority from such an obligation. In course of 12(8) assessment, the assessing authority was required to re-determine the gross turnover as well as taxable turnover and in course of such determination, he was statutorily bound to give deduction as admissible in law to the assessee. The assessing authority cannot justify such omission on the ground of the assessee having suppressed any part of his turnover. In view of the above findings, we answer the question framed, in favour of the assessee and against the Revenue and hold that the transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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