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TMI Blog2015 (11) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistant Commissioner of Commercial Taxes, Jamshedpur reported in: [1970] 26 STC 354 (SC)? (3) Whether, in the facts and circumstances of the case, the Tribunal was correct in having concluded that the appellant had sold only HDPE bags and not HDPE fabrics solely on the basis of the description adopted by transporter in his lorry way-bills de hors the other materials like purchase orders, invoices which prove otherwise? (4) Whether, in the facts and circumstances of the case, the Tribunal was right in having restored the assessment made by the assessing officer solely on the premise that statement recorded by the Transporter in favour of this appellant cannot be accepted? T.C. (A) No. 42 of 2014: (5) Whether the Tribunal was correct in having confirmed the levy of penalty under section 12(5)(iii) of the TNGST Act, 1959 on the face of the fact that all figures were culled out from the lorry way bills maintained by this appellant in the regular course of business and claimed as exemption and not a best judgment assessment in stricto senso? T.C. (A) No. 43 of 2014: (6) Whether the Tribunal was correct in having confirmed the levy of penalty under section 16(2) of the TNGST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 50,429 being 150 per cent of the tax due on the actual suppression levied without quoting the section under which he had levied penalty. Again, the aggrieved assessee preferred an appeal before the Appellate Assistant Commissioner, who vide his order dated October 11, 2004 made in A.P. No. 187/02, based on records produced and arguments put forth, set aside the addition made and allowed the appeal with consequential levies of surcharge, additional surcharge, additional sales tax and also penalty levied by the assessing officer. Not satisfied with the order of the first appellate authority, the State has preferred an appeal before the Tribunal seeking restoration of the assessment made on the turnover of Rs. 6,11,263.50 pertaining to the claim of sales of HDPE fabrics and also surcharge of Rs. 1,528, additional surcharge of Rs. 1,528, additional sales tax of Rs. 16,270 besides penalty of Rs. 50,429. 4. For the assessment year 1988-89, the assessee was originally assessed on a total and taxable turnover of Rs. 42,49,530 and Rs. 22,75,457, respectively under the TNGST Act, 1959, in the proceedings dated December 30, 1989. The taxable turnover included, inter alia, the disallowanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty under section 16(2) of the Tamil Nadu General Sales Tax Act, 1959 for the year 1987-88 (STA No. 393/06) and levy of penalty under section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 for the year 1988-89 (STA No. 468/06) are warranted?" 6. The Tribunal rejected the claim of the assessee with regard to the first point holding as follows:- "11. While the assessment relating to the year 1987-88 was the revision assessment proceedings, the assessment pertaining to the year 1988-89 was the original assessment proceedings. In the first round of litigation, this Tribunal, while remanding the cases back to the assessing officer for de novo assessment, had categorically held that if at all disallowance is to be made, it ought to have been only with reference to the records so secured. This Tribunal has also recorded a very clear finding to the effect that as rightly pointed out by the learned State Representative, the assessment of Tvl. Indag Products Limited does not show any indication of the buyers having incurred the stitching charges. Pursuant to the above remand order of this Tribunal, the assessing officer had revised the assessment for the year 1987-88 determini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground that when the products sold by the assessees were only HDPE fabrics, there is no necessity to mention in the lorry way bills, the description of the item as 'HDPE bags'. This contention is not acceptable on the ground that when the products sold by the assessees were only HDPE fabrics, there is no necessity to mention in the, lorry way bills, the description of the item as HDPE bags', it is to be mentioned here that Tvl. Southern Roadways Limited being a transporter could have easily mentioned in the recovered lorry bills that the item transported were only HDPE fabrics, had the items transported were really HDPE fabrics. 13. Perusal of D7 records recovered along with the assessment records would reveal that the assessing officer had rightly held that the items which were transported were only HDPE bags even though in the invoices they had mentioned as HDPE fabrics as it had been categorically proved through the recovered lorry way bills that they had only HDPE bags and however they had raised invoices as if they had sold HDPE fabrics. Further, the assessee, though this Tribunal in its earlier order held that the assessment of Tvl. Indag Products Limited did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent of the tax due is not at all fair in these cases and therefore we are of the considered view that only the penalty at 75 per cent of the tax due would be fair and meet the ends of justice. Hence we, by setting aside the order of the first appellate authority for both the years fix the penalty at Rs. 25,215 for the year 1987-88 and Rs. 28,196 for the year 1988-89." 8. Aggrieved by the orders of the Tribunal, the assessee has filed the present tax case (revisions). 9. Heard learned counsel appearing for the assessee and the learned Special Government Pleader appearing for the Revenue and perused the materials placed before this court. 10. We are not inclined to go into the first order passed by the assessing authority. The disputed question of fact as pointed out by the learned counsel appearing for the petitioner is that what was found as discrepancy in relation of the assessment year 1987-88 is 16 slips and for the assessment year 1988-89, 4 slips. That order has already been set aside by the Tribunal and remanded the matter to the assessing officer in the first round of litigation for considering the entire issue de novo. The said order of the Tribunal has been extract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D7 records. Similarly, for the assessment year 1988-89, based on the remand order of the Tribunal the proposal was made in the following manner:- "4. In view of the above, it was proposed to revise the assessment of the dealers for the year 1988-89 under the TNGST Act 1959 as detailed below, after due verification of the records and statements, in pursuance of the order of the Tamil Nadu Sales Tax Appellate Tribunal read above. Taxable turnover as per returns and accounts (Sales of sacks from 1.7.88 to 6.10.88 Rs. 3,52,180.00 5% Sales of sacks from 7.10.88 to 31.3.89 (G. O. P 1316 dated 7.10.88) Rs. 9,54,978.00 2% Add: Sales of bags as per D7 records recovered at the time of inspection on 4.8.88 (sales up to June 88) Rs. 6,26,561.55 5% Taxable turnover proposed to be refixed Rs. 19,33,720.00 Add: Exemption claimed but restricted and allowed Rs. 23,15,811.00 Total turnover proposed to be refixed Rs. 42,49,531.00 5. It was also proposed to levy surcharges and additional surcharge at 10 per cent and 10 per cent, respectively of the tax due. It was also proposed to levy additional tax at 1.25 per cent of the taxable turnover of Rs. 19,33,720 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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