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TMI Blog2014 (4) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... Shoes. Following are the substantial questions of law, on which, the above Tax Case (Revisions) were admitted: T.C.(R)No.84 of 2011: "Whether in the facts and circumstances of the case, the Tribunal was right in ignoring the bills of exchange which show the transfer of consideration on the sales of raw skins effected by the assessee to the sister concern M/s.C.K.Sons Shoes?" T.C.(R) No.168 of 2011: "1. Whether on the facts and circumstances of the case, the Appellate Tribunal is right in law in holding that there are no valid materials to hold that there is no transfer of property when admittedly there are evidences to prove their existence in form bills of exchange which were not shown in accounts? 2. Whether on the facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the loan facility offered to the assessee herein and the transactions were only paper transactions, so as to enable the sister company to get finance from the finance company. The finance company had issued cheque to the sister company. Thus on the remand made, the Assessing Officer once again initiated assessment proceedings. In the course of the proceedings before the Assessing Officer, the assessee produced the original letter of M/s.Upasana Finance Limited, wherein it was stated that they had discounted the bills of M/s.C.K.Sons Shoes - the assessee herein and they had returned the invoice at the request of the customer. In the circumstances, they could not produce the further invoices. The assessee pointed out that they had manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment made, the assessee went on appeal before the Appellate Assistant Commissioner, contending that the Bills were only to accommodate the assessee for getting finance from the finance company; consequently, in the absence of real sale to result in transfer of property and goods, there could not be any assessment. 5. The First Appellate Authority pointed out that the assessee had not filed any proof as regards the export and the drawing of money from finance company by Bill discounting of only regular financial transactions which had been properly accounted for in M/s.Golden Leathers; the drawings had no relationship to the business transactions of the assessee with M/s.Golden Leathers; consequently, the assessment could not be up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Leathers. The inspection revealed discounting of Hundis with finance company. Evidently, these Hundis were with reference to the sale of dressed skins by M/s.Golden Leathers to M/s.C.K.Sons Shoes. The assessee, no doubt, submitted an affidavit from M/s.Upasana Finance Limited and the statement of accounts on the amounts drawn and paid and the cheque received towards drawal of funds from M/s.Upasana Finance Limited. But we do not find any justifiable ground to accept the order of the Tribunal solely on the basis that the financial transactions with M/s.Upasana Finance Limited or any other finance company would ultimately decide the character of the transaction between the purchaser and the seller. All the dealings that the finance company h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the assessment made. 9. It is relevant to point out that when the assessee was confronted with the documents, the proper course for the assessee was to place necessary materials to show that these transactions were only paper transactions. In the absence of any such proof and the burden not being discharged by the assessee, we have no hesitation in restoring the assessment. We, however, accept the plea of the assessee that in the matter of calculating penalty, the Assessing Officer ought not to have taken in the Additional Sales Tax liability to work out the penalty at 150%. Having regard to the fact that in respect of the assessment years under consideration, no penalty could be levied in respect of additional sales tax liability, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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