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TMI Blog2009 (8) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the assessee. The order of the Tribunal is therefore fully justified. In such circumstance, the question of law raised by the appellant that incorrect reporting of taxable turnover without equal addition was not applicable for the purpose of levy of maximum penalty has to be answered in favour of the Revenue. - 2021 of 2006 - - - Dated:- 7-8-2009 - IBRAHIM KALIFULLA F.M. AND RAJENDRAN B. , JJ. The judgment of the court was delivered by B. RAJENDRAN J. The assessee, who is a dealer in timber and tiles, has come forward with the present tax case. The assessee submitted its return for the assessment year 1989-1990 showing total and taxable turnover of Rs. 1,21,40,395.85 and Rs. 82,48,579, respectively in form A1 for the year ending March 31, 1990. The assessee is having their head office at No. 38, Kankodutha Pillaiyar Koil Street, No. 1 road, Mayiladuthurai and branches at Kumbakonam, Tuticorin and at three places at Chennai. The place of business of the assessee and also the residence of the dealer at T. Nagar, Madras were inspected by the Enforcement Wing Officials on January 11, 1991, April 16, 1991 and October 4, 1991. At the time of house search, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the assessee has not come forward with any objections, the proposals contained in the preliminary notice was confirmed and a sum of Rs. 47,31,360 was imposed as total and taxable turnover estimated, which sum has escaped assessment and liable at eight per cent along with surcharge, penalty, etc., by an order dated February 28, 1994. Aggrieved by the said order dated February 28, 1994, the assessee filed Appeal Nos. 392 of 1995 and 393 of 1995 before the Appellate Assistant Commissioner, Cuddalore, one against the original assessment order dated November 15, 1994 and the other against the revised assessment dated December 28, 1994. Before the Appellate Assistant Commissioner, the appellant pleaded that notice was not served as the assessee had closed the business by March 31, 1993 due to heavy loss. The total purchase of Rs. 2,07,24,938 as per list filed and adopted in the revised order is exclusive of the opening stock as on April1, 1989 and therefore, there was no purchase suppression at all. The Appellate Assistant Commissioner, after an elaborate discussion modified the orders passed by the assessing officer in Appeal No. 392 of 1995, stating that there was difference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of Rs. 88,940, additional surcharge of Rs. 70,970 and penalty of Rs. 8,13,745. The Tribunal, after considering the various aspects in detail and on perusal of the records, set aside the order of the Appellate Commissioner rejecting the concession granted to the assessee and restored the orders of assessment passed by the assessing officer, including penalty. The Tribunal also allowed the enhancement petition filed by the Additional Assistant Commissioner, hence, the present appeal is filed by the assessee against the common order dated December 21, 1998 passed by the Tribunal in Appeal No. 778 of 1996, 779 of 2006 and petition No. 66 of 1997. At the instance of the assessee, the following substantial questions of law were raised: 1. Whether there can be equal addition as sales suppression due to misclassification, unreasonable profit, incorrect reporting of taxable turnover and based on purchase omission, when the Tribunal held that for the purpose of levy of maximum penalty such equal addition not applicable. 2. Whether can there be equal addition as sales suppression when the inspection itself after the close of assessment year. 3. Whether the benefit of 50 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has paid customs duty and payment of costs of logs, the assessee failed to maintain day to day stock account for head office and six branches and godown as required under law. It was also found that the assessee had done business in other States and such sales were separately assessed under the Central Sales Tax Act, 1956 for the year 1989-90. It is pertinent to note that ultimately when final notice was issued and objections were invited by sending a notice under registered post, the same was returned with an endorsement no such person . It was also found that the personal service was not possible as the assessee did not co-operate to receive the same. Further it is stated that even the manager, who was authorised to file the return, did not co-operate and ultimately the summons were affixed at the last known place of business. As the assessee purposely avoided to produce the accounts and also failed to receive the summons, the assessing authority passed revised assessment under section 16(1) of the Tamil Nadu General Sales Tax Act, imposing surcharge and penalty. The assessee has filed an appeal before the Appellate Assistant Commissioner and succeeded in deleting a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nforcement wing officials, the suppression could have gone unnoticed and the intention of the assessee to suppress such a huge turnover is clearly established. When such intention is proved beyond reasonable doubt, the findings of the Appellate Assistant Commissioner giving benefit of doubt to the assessee, merely because the opening stocks were not properly taken into account, is unsustainable in law. Per contra, the Tribunal has rightly considered all the relevant materials and set aside the order passed by the Appellate Assistant Commissioner. The Tribunal has also rightly concluded that imposition of 150 per cent of penalty is warranted in the facts and circumstance of the case especially when there is a huge and large scale suppression of the transaction on the part of the assessee. The order of the Tribunal is therefore fully justified and we do not find any reason to interfere with the same. In such circumstance, the question of law raised by the appellant that incorrect reporting of taxable turnover without equal addition was not applicable for the purpose of levy of maximum penalty has to be answered in favour of the Revenue. Consequently, the other questions of law rai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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