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TMI Blog2011 (6) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... ight in sustaining the penalty when there was no evidence to establish that there was a concluded contract of sale which was suppressed by the petitioner is correct in law? Held that:- The addition made on actual suppression is confirmed. Further, the assessing officer also made equal amount of probable omission and suppression of 60,189. It is only probable omission and there is no concrete evidence available to make this addition and also there is no material available except on the basis that there is probable omission and suppression. Therefore, in the absence of evidence, addition cannot be made and the Tribunal is wrong in confirming equal amount of probable omission. Therefore, addition of a sum of 60,189 made on the basis of the equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 26, 2008 on the following questions of law: "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining the assessment merely based on the freight receipt alone is correct in law? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining further addition when there was no material evidence for such addition as the inspection was conducted only on September 3, 1994? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining the penalty when there was no evidence to establish that there was a concluded contract of sale which was suppressed by the petitioner is correct in law?" The revision petitioner/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner modified the addition and directed the assessing officer to modify the penalty. Aggrieved by that order, the assessee filed appeals before the Sales Tax Appellate Tribunal. The Tribunal dismissed the appeals. Aggrieved by that order, the petitioner/assessee filed the present revisions. The learned counsel appearing for the petitioner/assessee contended that the order passed by the Sales Tax Appellate Tribunal is illegal, wrong, without basis and justification. He further contended that the lower authorities were not justified in levying tax on the basis of the lorry receipts and also the authorities below failed to consider the vital facts that mere transportation of the goods was not sufficient to infer that the movement were res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctual suppression of ₹ 60,189 and the appellate authority as well as both the authorities had given concurrent finding that there is evidence to show that there was actual suppression. Therefore, the addition made on actual suppression is confirmed. Further, the assessing officer also made equal amount of probable omission and suppression of ₹ 60,189. It is only probable omission and there is no concrete evidence available to make this addition and also there is no material available except on the basis that there is probable omission and suppression. Therefore, in the absence of evidence, addition cannot be made and the Tribunal is wrong in confirming equal amount of probable omission. Therefore, addition of a sum of ₹ 60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee, stock discrepancy was found and the documents were recovered in 19 slips and they were reflected in the purchase suppression for the assessment year 1994-95. So, the addition made on the basis of the stock discrepancy is based on valid material and also besides stock discrepancy, there is another records revealing purchase suppression, which clearly indicated the account maintained by the assessee are not complete and correct. Further it was found by the authorities below that the recovery of the lorry receipts/ invoices, which were not accounted for in the books of accounts indicates that the assessee is in the habit of transacting outside the books of accounts. Therefore, the authorities have correctly made the actual su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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