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TMI Blog2014 (5) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... he transaction with the assessee, the Tribunal as well as the Appellate Assistant Commissioner misdirected themselves in deciding the case in favour of the assessee by holding that the registration of S.R.Enterprises and Sudarsan Enterprises was cancelled only subsequent to the sales and thus, the claim for exemption could not be rejected. No Evidence – No proof of transfer of goods - Held that:- When the link between the seller and the alleged seller had not been proved, the case of the Revenue cannot be slightly dismissed - In a revision where question of law alone is involved, normally this Court would not disturb the findings as given by two authorities - However, when the findings are without any material and there is perversity writ large on the face of it, it is worth accepting the case of the Revenue, more so in the context of the detailed discussion by AO, pointing out to the infirmities in the stand of the assessee - In the circumstances, the order of the Tribunal is set aside and the assessment order is restored. Levy of penalty - Held that:- It is no doubt true that the assessee had not discharged the burden as regards his claim on exemption - But then, consideri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials were delivered by him along with the invoices by lorry at their godowns. Further, the assessee had made payments to the seller only by Account Payee cheques and they were encashed through the bankers, The Kumbakonam City Union Bank Ltd., 706, Mount Road, Chennai-6. In a detailed order of assessment made, the Assessing Officer pointed out that going by the admission of the assessee under objections dated 8.8.1995 that the purchases were made from Brij Khandelwal, it was clear that the purchases were not made from the dealers, Sudarsan Enterprises and S.R.Enterprises, who were earlier shown as the local dealers from whom the said purchases were effected. The assessee filed the second objection dated 8.8.1995. The Assessing Officer pointed out that the assessee had not produced the relevant documentary evidence to prove that the purchases were effected from the said Brij Khandelwal of Egmore. A verification of the Bank accounts given by the assessee also did not show any information about who operated the accounts, as the said account was closed as early as 8.9.1995. As regards the Central Bank of India account which was maintained by one S.Kumar, introduced by Brij Khandelwal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely. Going by the materials thus available, the assessment was made. Apart from that, penalty was also levied on the assessee. 6. On appeal before the Appellate Assistant Commissioner, the Appellate Authority pointed out that at the time of hearing the appeal, the assessee produced copies of purchase bills for the purchase of plastic granules from the registered dealers, and in which, the registration certificate under the Tamil Nadu General Sales Tax Act as well as the Central Sales Tax Act, were noted. 7. The Appellate Authority pointed out that the assessee produced the ledger account of purchase details, in which they had paid the balance to the anterior seller through account payee cheques. The Appellate Assistant Commissioner referred to the finding of the Commercial Tax Officer that the registration certificate of S.R.Enterprises was cancelled. He further observed that the assessee had produced the materials to show that it had purchased from dealers who were existent and the purchases were made earlier to the cancellation of registration. Further, since the Department's representative could not produce the recorded evidence as regards the cancellation of the registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be denied to the assessee. 10. Heard learned counsel appearing on both sides and perused the material placed on record. 11. As already pointed out in the preceding paragraphs, the assessee claimed that it had purchased plastic granules from Brij Khandelwal. It is admitted by the assessee that the purchases were under the name of Sudarsan Enterprises and S.R.Enterprises. As rightly contended by the learned Special Government Pleader (Taxes), there is absolutely no material to link Brij Khandelwal with Sudarsan Enterprises and S.R.Enterprises. It is one thing to say that the assessee is an existing dealer on the file of the Revenue, carrying on business in goods, in which event, the subsequent registration and cancellation or purchase from unregistered dealers, as such, may not stand in the way of grant of an exemption. However, it is totally a different matter for consideration that when there was absolutely no material to substantiate that the materials were purchased from existing persons and that there was, in fact, a sale and a transfer of property of goods, the burden that the sale from existing persons did take place, ought to have been discharged by the assessee. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it was only Brij Kandelwal who had had the transaction with the assessee, the Tribunal as well as the Appellate Assistant Commissioner misdirected themselves in deciding the case in favour of the assessee by holding that the registration of S.R.Enterprises and Sudarsan Enterprises was cancelled only subsequent to the sales and hence, the claim for exemption could not be rejected. 14. As already pointed out, when the link between the seller and the alleged seller had not been proved, the case of the Revenue cannot be slightly dismissed. We are aware of the fact that by holding so, we are disturbing the findings of the Tribunal and in a revision where question of law alone is involved, normally this Court would not disturb the findings as given by two authorities. However, when the findings are without any material and there is perversity writ large on the face of it, we have no hesitation in accepting the case of the Revenue, more so in the context of the detailed discussion by the Assessing Officer, pointing out to the infirmities in the stand of the assessee. In the circumstances, the order of the Tribunal is set aside and the assessment order is restored. 15. As regards the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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