9911796707
TMI Blog2016 (10) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... t : Sarvesh Jain ORDER 1. Instant petition is directed against order dt 16.1.2008 passed by Rajasthan Tax Board, Ajmer, in appeal no.844/2007/Jaipur, whereby the appeal filed by respondent assessee, has been allowed. 2. Brief facts noticed are that a survey was conducted at the business premises of respondent on 2.3.2001 in the presence of Shri Shantilal Jain, the Proprietor of said concern. It was noticed that the respondent is maintaining books on computer. At the time of survey the officers found that in the room above computer room a godown is situated where 90 cartons of Pack Chain (Zip) with mark 'H.L.' were found noticed and on enquiry the assessee stated that the same were purchased from Delhi, however, despite of providing time, the assessee did not produce the necessary purchase bill, challan, builty or/and other material and on the contrary it was found that the said items were not recorded in the books of account. Accordingly the officer prepared a stock statement. A show-cause notice u/s 77(8) of the RST Act, 1994 was issued for hearing on 8.3.2001, however, the respondent assessee filed written reply on the spot contending, inter alia, that the hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was given of a date much later granting adequate time but the assessee finding that he had no bill or voucher, filed an explanation that he is unable to produce any document and that even the said unaccounted stock is not entered in the books of account. Learned counsel further contended that there was no retraction or resiling of the statements before the AO even after completion of survey or before the senior officers and, therefore, the claim after obtaining the material ought not to have been considered by the Tax Board. Learned counsel contended that the instant case is squarely covered by the judgment rendered in the case of ACTO, Ward-II v. B.C. Company Anr (2013) 66 VST 3 (Raj.), and the order of the Tax Board requires to be reversed. 7. Per contra, learned counsel for the assessee vehemently contended that the order of Tax Board is just and reasonable and is not required to be interfered with and contended that the assessee had no option except to come to the terms of the officer conducting survey and despite the goods duly accounted for, the assessee was forced to give statements to accept that the stock of 90 cartons was unaccounted. Learned counsel contended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill purchase bearing no.17129 from M/s Y.K.K India Private Limited, New Delhi dt 27.2.2001 amounting to ₹ 4856/- which was signed by the respondent in the presence of the witnesses and officer. 10. Insofar as the additional stock found in the godown above the Computer room, the assessee categorically stated that these goods have been received from Delhi but there is no purchase bill, challan and even, if time is granted the assessee stated that he will not be able to produce the purchase bill/challan because he does not have the same and for this reason he stated that he has also not been able to record such stock in the books of account. Thereafter he has provided the rates of the various items found, namely 24 @ ₹ 6000 per line, 22 @ ₹ 5000 per line, 20 @ ₹ 4000 per line and 18 @ ₹ 3000 per line. He also stated that he has already made the payment of the said purchase but he does not have any receipt of the same because these goods were received by bus on various dates and he does not have even the receipt of fare of the bus. He further stated that he has purchased the goods from Delhi without bill and challan and with the intention of evasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not sufficient that too before the Appellate Authorities. 15. Learned counsel for the assessee contended that though the assessee had in possession the purchase bill of UJ Zippers (Pvt.) Limited dt 28.2.2001, builty of Prince Carrying Corporation bearing GR No.3834 of 28.2.2001 of transportation from Delhi to Jaipur and endorsement of one Tarachand who has received freight of the said vehicle on 1.3.2001, a challan outward issued by UJ Zippers (Pvt.) Limited, Faridabad dt 28.2.2001, cash book, purchase register and ledger account of UJ Zippers (Pvt.) Limited, but on account of pressure/coercion was not permitted to place the same before the AO. However, in my opinion it appears to be an afterthought or procured later-on. 16. There are even otherwise contradictions in the statement dt 1.3.2001, and only one or two contradictions are sufficient to dislodge the bills/vouchers namely that the assessee claims that the goods were received through Prince Carrying Corporation and was received by it on 1.3.2001, but even by the close of 1.3.2001 no entry was found recorded in the books of account, whereas the assessee had himself stated that he had purchased the same from Delhi and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the respondent has placed reliance on certain authorities which will be appropriate to deal with. 21.1 The judgment of this court in the case of CTO, Anti Evasion, Udaipur v. M/s. Tulsilal Manila Swarankar, Banswara (supra), was a case where this court had held that goods received on the day of survey can be entered in accounts by the close of the business hours, whereas in the instant case even as per the version of the assessee the goods were received on 1.3.2001 but was not recorded on 1.3.2001 and at-least no books were produced of showing that the goods were recorded even by the close of 1.3.2001, therefore, distinguishable. 21.2 The judgment in the case of M/s. Diamond Marketing Agency, Jaipur v. A.C.T.O. (supra) of this court, is also distinguishable on facts as in that case the court found that there were no two independent witnesses, the statements were not signed by the Manager as also owner of the firm, whereas in the instant case admittedly the statements are duly signed and sealed by the owner and there are two independent witnesses and in the presence of independent witnesses stock taking has been conducted and the procedure under Rule 50 was duly taken car ..... X X X X Extracts X X X X X X X X Extracts X X X X
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