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TMI Blog2014 (5) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee before the AO - Tribunal, without answering the said issue had proceeded to decide the appeal on merits and ultimately dismissed the appeal - A reading of the Appellate Assistant Commissioner's order does not indicate of any consideration with regard to application of the provisions of Section 39B(2) - The documents produced by the assessee before the Appellate Assistant Commissioner should not have been relied upon - Since Tribunal has also not considered the issue and there is no answer - Both the orders the Appellate AC and Tribunal set aside – Decided in favour of Revenue. - T. C. (R) No. 278 of 2011 - - - Dated:- 24-2-2012 - D. Murugesan And P. P. S. Janarthana Raja,JJ. For the Petitioner : Mr. A. R. Jayaprathap Govt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee. In spite of the said question raised, the Tribunal, without answering the said issue, had proceeded to decide the appeal on merits and ultimately dismissed the appeal filed by the Revenue. Under the circumstances, the present tax case revision is filed. 3. Admittedly, before the Appellate Assistant Commissioner, at least the two following records were filed, viz., the records to show that the assessee have distributed service charges amongh the staff members and the purchase bill of the purchases made from M.A.Ethirajulu Naidu and Karim's Hotel Supplies and Services. Both the records have been taken into consideration by the Appellate Assistant Commissioner and had been relied upon in the order. 4. The contention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Assistant Commissioner to consider those documents and pass orders. 6.We have considered the above submission. Section 39B(2) of the Act reads as under:- "39-B.Production of accounts.-(1) Every dealer liable to pay tax under this Act, shall make available to the assessing authority any account, register, record or other document relating to the day-to-day transaction of his business. (2) The Appellate Assistant Commissioner, or the Appellate Deputy Commissioner shallnot, for the first time, receive in evidence on behalf of any dealer in any appeal, such account, regiser, record or document as is mentioned in sub-section (1), unless for reasons to be recorded in writing, he considers that such account, register, record or document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler to produce those documents before the asessing authority which was beyond their control. The order of the Appellate Assistant Commissioner on merits has to suffer in the event he fails to give reasons recorded in writing in respect of genuineness of the documents and the failure of the assessee in not producing those documents before the asessing officer for the reason that the same was beyond their control. 8. The assessing officer also would be entitled to consider whether the documents produced are relating to the day-to-day transaction of the business. If those documents do not relate to the day-to-day transaction of the business, the provision of sub-section (2) relating to giving reasons in writing does not apply. However, even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in writing to the effect that the said documents are genuine and the failure to produce the same before the assessing authority was for the reasons beyond the control of the dealer. The said embargo appears to have been incorporated only in order to see that the assessee should not be allowed to recast his accounts by plugging the holes pointed out in the assessment order." 11. For the above reasons, we are of the considered view that both the orders of the Appellate Assistant Commissioner as well as the Appellate Tribunal must be set aside and the matter has to be remitted back to the Assessing Officer for fresh consideration. Accordingly, the orders of the Appellate Assistant Commissioner and the Appellate Tribunal are set aside and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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