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TMI Blog2011 (1) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... ow-cause notice dated November 18, 1997 within five years from the date of the order of the second respondent dated May 30, 1996 and therefore, there is no violation as per section 34(2)(c) of the Tamil Nadu General Sales Tax Act, 1959 and in this regard, the contra plea taken by the petitioner is negatived by this court. Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ontentions, the learned counsel for the petitioner contends that the first respondent/Joint Commissioner III (SMR), Commercial Taxes, Chennai-5, has omitted to see that the third respondent/Deputy Commercial Tax Officer, Mailam Chandai II Circle, Trichy, has made unreasonable additions in the turnover. Furthermore the first respondent/Joint Commissioner III (SMR), Commercial Taxes, Chennai-5, ought to have accepted the gross profit calculation. The sum and substance of the contention put forward on the side of the petitioner is that the show cause proceedings, in the instant case on hand, commenced on November 18, 1997 and the impugned order of the first respondent/Joint Commissioner III (SMR), Commercial Taxes, Chennai-5 has been passed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd respondent has calculated the total and taxable turnover of the petitioner, on adding 19 per cent towards gross profit as per accounts on the purchase suppression along with an equal addition for the probable omissions. The suppression indulged in by the petitioner is a continuous one as seen from the detection made by the Department on three occasions in the months of June, July and August 1994, i.e., on June 23, 1994, July 25, 1994 and August 17, 1994, respectively. The learned Government Advocate for the respondents submitted that the assessment has been made as per the principles laid down in the decision in Indo Burma Stationery and Paper Stores v. State of Tamil Nadu reported in [1984] 57 STC 290 (Mad) and being dissatisfied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business proved that the petitioner has not issued any sale bill for aluminium vessel which goes to show that the petitioner has been effected purchases and sales without bringing into account and not paying legitimate tax due to the Government. Continuing further, the contact of the petitioner also goes to show that he has not maintained correct and complete accounts through out the year and when there is an excess stock, certainly the onus is on the petitioner to establish that the purchases effected by him have been made from the registered dealers. At this juncture, it is useful for this court to refer to section 34 of the Tamil Nadu General Sales Tax Act, 1959 which runs as follows: "34. Special powers of Joint Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een the date of the abovesaid order of the Special Tribunal and the date of the order of the Supreme Court shall be excluded in computing the period referred to in clause (c). (3) No order under this section adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard. (4) In computing the period referred to in clause (c) of sub-section (2), the time during which the proceedings before the Joint Commissioner of Commercial Taxes remained stayed under the order of a civil court or other competent authority shall be excluded." Though a plea has been raised in the memorandum of grounds on the side of the petitioner that the impugned order of the first respondent dated October 21, 2004 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. For the reasons above, it is proposed to set aside the order of the Appellate Assistant Commissioner (CT), Trichy and to restore the order of the assessing officer through a show-cause notice in TNGST No. 358771/94-95 dated November 27, 1995." On going through the order of the first respondent/Joint Commissioner III (SMR), Commercial Taxes, Chennai-5, it is patently evident that the suo motu revision has been confirmed resultantly. In the impugned order dated October 21, 2004, the first respondent has, inter alia, stated that "when there are excess stocks in different items, it is the duty of the dealers to prove that the purchases were from registered dealers. This has not been proved at any stage. Therefore their contention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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