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TMI Blog2014 (5) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the date of inspection and they were in poor condition - The assessee could not show the receipt of the goods and the manner in which it had dealt with the goods - There is every justification for including this turnover for the purpose of assessment. Levy of penalty – Held that:- the Assessing Officer gives no reason for imposition of penalty indicating any intention on the part of the assessee to suppress the fact - the explanation offered by the assessee was disbelieved and rejected, per se would not lead to imposition of penalty - the fact that there are also defects in the enquiry done by the Revenue, thus, it is not a fit case where penalty should be imposed – relying upon APPOLLO SALINE PHARMACEUTICALS PRIVATE LIMITED v. COM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessing officer is legally sustainable?" 2. It is seen from the narration of the facts that the place of the business premises of the assessee was inspected on 23.4.97. At the time of inspection, there was no stock available. As per the balance sheet, book stock was shown as Rs.35,08,002/-. The assessee explained that during the year they could not get any export orders. The leather, if kept in open area, would get badly damaged, hence, they sent it to Anusha Leathers, Chennai and Balaji Garments for temporary custody. Subsequently, they were received and were valued by the valuer at Rs.1,59,000/- only due to their damaged condition. Pursuant to the said information available, the Revenue undertook inspection in the business premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it was not correct on the part of the assessee to contend that it had handed over the goods worth Rs.10 lakhs in the year 1996 for safe custody. Since the facts clearly established that there was no such concern as Anusha Exports in the year 1996, the handing over of the garments worth Rs.10 lakhs to Anusha Exports could not believed. Hence, the assessment was sustained. It however pointed out that as the surveyor had stated that the goods were not worth of export, and except for the despatch to Anusha Leathers, there were no other materials on disposal, it would be just and proper to fix the taxable turnover for 1996-97 at Rs.5 lakhs, it being 50% of the value of Rs.10,00,000/-. 3. As regards the goods despatched to Balaji Garments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the genuineness of the delivery challan. So too the entry in the inward register was not questioned by the Officers. Thus, based on the materials available, the Tribunal held that as far as the delivery of goods to Balaji Garments was concerned, there was sufficient materials to substantiate the assessee's case. Thus holding, it partly allowed the assessee's case, thereby confirmed the findings of the Appellate Assistant Commissioner. The Revenue's appeal to that extent was rejected. 5. As far as levy of penalty is concerned, the Tribunal remanded the matter back to the Assessing Officer to refix the penalty after taking into consideration the relief granted by the Tribunal. Aggrieved by this, the Revenue is on appeal. 6. As far as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween 1995-96 and 1996-97. On the admitted case of the assesee that the closing stock as on 31.3.1996 was Rs.10 lakhs and on the date of inspection there was no stock available with the assessee or the stock available with the so called Anusha Leathers Private Limited, the Tribunal should have confirmed the assessment of Rs.10 lakhs at the hands of the assessee for the assessment year 1996-97. To that extent, we accept the plea of the Revenue and set aside the order of the Tribunal. 7. As regards the assessment of Rs.25 lakhs in respect of stock said to have been entrusted with the Balaji Garments is concerned, the Tribunal pointed out that inward register showed the receipt of leather garments from the assessee by delivery challan 001/24 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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