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TMI Blog2015 (6) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... ng exempted unit till November 3, 1988 was also not disputed. - Impugned order is set aside - Decided in favour of assessee. - CWP No. 1605 of 2001 - - - Dated:- 6-8-2014 - MR. AJAY KUMAR MITTAL AND MR. FATEH DEEP SINGH, JJ. Mr. K.L. Goyal, Senior Advocate with Mr. Rishab Kapoor, Advocate for the Appellant Ms. Mamta Singla Talwar, AAG, Haryana with Mr. Vijay Yadav, Excise and Taxation Officer for the Respondent JUDGMENT Ajay Kumar Mittal, J. Challenge in this writ petition filed under articles 226/227 of the Constitution of India is to the orders dated July 19,1994 (annexure P9), dated November 30,1994 (annexure P11), dated February 7, 2000 (annexure P20) and dated July 17, 2000 (annexure P22). 2. Put shortl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned in the notice had not been incorporated in the books of account. The dealer/petitioner No. 2 through petitioner No. 3 filed an affidavit dated January 13, 1993 (annexure P4) and pleaded that these goods were never sold by the petitioners and the dealer had no concern with these transactions. The assessing authority vide order dated March 22, 1993 (annexure P5) made an addition of ₹ 2,75,279 in the gross turnover and after taxing it at the rate of 10 per cent., raised a demand of ₹ 27,528. The penalty under section 48 of the Act amounting to ₹ 55,100 at the rate of 200 per cent of the tax payable was also imposed. Thus, an additional demand of ₹ 82,628 was raised. Feeling aggrieved, the dealer filed an appeal (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petition were controverted by respondent Nos. 1 to 3 by filing written statement. 3. The learned counsel for the petitioners submitted that the liability was sought to be fastened on the petitioners as according to the Department the petitioner through six vehicles had exported mustard oil from Sundrehti to Delhi via S. T. C. B. Badli (Rohtak) on different dates. According to the learned counsel, the petitioners had never entered into any of these transactions and an affidavit dated January 13, 1993 (annexure P4) to that effect was submitted with the assessing authority. Learned counsel while placing reliance upon the judgment of the honourable Supreme Court in CIT v. Daulat Ram Rawatmull [1973] 87 ITR 349 contended that the onus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is not the real is on the party who claims it to be so. As it was the Department which claimed that the amount of fixed deposit receipt belonged to the respondent-firm even though the receipt had been issued in the name of Biswanath, the burden lay on the Department to prove that the respondent was the owner of the amount despite the fact that the receipt was in the name of Biswanath. A simple way of discharging the onus and resolving the controversy was to trace the source and origin of the amount and find out its ultimate destination. So far as the source is concerned, there is no material on the record to show that the amount came from the coffers of the respondent-firm or that it was tendered in Burra-bazar Calcutta branch of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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