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TMI Blog2013 (5) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... r (in short, "the DC (A)") dated March 22, 2007 and the order dated January 19, 2004 of learned assessing officer had been quashed, set aside and deleted the penalty. The brief facts emerging on the face of record is that a survey took place at the business premises of the respondent-assessee on January 19, 2004 and at the time of survey one Shri Umesh Roheda, the partner of the respondent partnership firm, was found at the business premises. The respondent-assessee is dealing in the business of bakery and general confectionery products. During the course of survey at the business premises, no books of accounts, bills vouchers and other supporting material were found. It has been stated by the assessing officer that despite ample opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf, did not avail of opportunity and requested for closing the proceedings then and there. However, he pleaded for imposition of penalty, if any, in accordance with law. The petitioner vide order dated January 19, 2004 imposed penalty at Rs. 46,125 on Rs. 1,53,750 at 30 per cent of the value of the goods under section 78(5) of the Act. Being dissatisfied with the order passed by the learned assessing officer, an appeal was preferred before the DC (A), wherein it was submitted that the stock was taken on estimate basis ; the address of the witnesses were not shown and that there was violation of provisions of rule 50 and, therefore, the penalty was wrongly levied/imposed. It was also claimed that the respondent was pressurised to surrender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, this revision petition. Ms. Tanvi Sahay, learned counsel for the petitioner-Department submitted that despite so many findings given by the assessing officer and the DC (A), the Tax Board, has wrongly deleted the penalty in a casual manner when there was a clear-cut admission/confession of the partner of the respondent-firm that the excess goods were neither supported by the required and proper books of accounts, nor bills, vouchers and builties and no documents were found in the premises during the course of survey and even later on. She further submitted that in this case two witnesses were there and in their presence and in the presence of the partner of the respondent-firm, physical verification of excess goods was taken and the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that by elaborate discussions, the penalty has rightly been deleted. Therefore, there is no case of reversing the findings of the case. He placed reliance on the case of Assistant Commercial Taxes Officer v. Kishori Shyam Brijesh Kumar [1994] 93 STC 213 (Raj) and the case of Diamond Marketing Agency, Jaipur v ACTO (Anti Evasion-I), Circle-II Jaipur 19 Tax Up Date 12. Having heard the learned counsel for the parties and perusing the material on record, I am satisfied that the penalty has wrongly been deleted by the Tax Board for the reason that (i) no books of accounts, bills, builty and vouchers were found/produced during the course of survey ; (ii) despite adequate opportunity having been granted not only at the time of survey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vit but in the instant case it can be said to be a self-serving statement only. Had the respondent produced the supporting material like bills, builties, vouchers and also the books of accounts, in support of his claim then possibly version and the facts pleaded in the affidavit would have helped immensely to the respondent but all these are lacking in this case. Had grievance about pressurizing tactics/coercion inflicted upon him (respondent), then the necessary course before the respondent-assessee was to have immediately approached the higher administrative authority, namely, the Commissioner of Commercial Taxes Department rather than sleeping over the matter and merely filing an affidavit before learned DC (A) much later on point of tim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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