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TMI Blog2018 (1) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of paper and job work of paper coating and paper colouring and was registered under the GVAT Act as well as the Central Sales Tax Act, 1956. The business of the appellant was started from June 2008 in partnership with (a) Ishwarbhai Pitharam Chaudhary and (b) Ritesh Suryakant Vimavala. After conducting business for a few months, Mr. Ritesh Vimavala expressed his desire to retire from the partnership firm and, accordingly, a deed of dissolution was executed on 5.12.2008 and he retired with effect from 30.11.2008. The remaining partner, namely, Mr. Ishwarbhai Chaudhary decided to continue the business as a proprietary concern and, accordingly, the concerned officer was informed about the fact of retirement of Mr. Ritesh Vimavala and the business being continued by Mr. Ishwarbhai as a proprietary concern. Earlier, the name of the firm was Shilp Speciality Paper, which subsequently came to be changed to Shilp Corporation and the business was also changed. The concerned officer was informed about such change by a letter dated 26.8.2009. The appellant appointed Mr. Mitesh Chaudhary, the son of its proprietor, as an authorised person on 10.6.2010 and, accordingly, Form 101A was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his ex-partner but the police department informed him that since he was a witness in the very same complaint filed by the department, another complaint on the same ground could not be filed. Thereafter, the Assistant Commissioner of Commercial Tax initiated assessment proceedings raising various issues. It is the case of the appellant that it gave its reply to those issues and the officer concerned was convinced about the replies so given and such issues came to be dropped. However, in the assessment, huge dues have been raised by incorporating the turnover, as admitted in the revised returns filed by the retired partner. Moreover, penalty and interest have also been imposed on such dues and huge dues total amounting to Rs. 7,25,49,977/- and Rs. 2,96,82,711/- have been raised against the appellant for the assessment years 2011-12 and 2012-13 respectively. 3.4 Being aggrieved, the appellant preferred first appeals before the Deputy Commissioner of Commercial Tax who, however, insisted upon payment of 25% of the total dues as a condition for admission of the first appeals. Since the appellant did not make such payment, the first appeals came to be summarily dismissed. Being aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. Thus, the statements made in the revised returns have been duly cross- checked by the respondent. It was submitted that in these circumstances, the contention of the appellant that no addition could have been made on the basis of the revised returns, does not have any substance. It was further submitted that insofar as the revised returns are concerned, the same have been filed only for the assessment year 2011-12, whereas the reverse reports also relate to the assessment year 2012-13. It was submitted that, therefore, insofar as the reports for assessment year 2012-13 are concerned, the same are not based upon the revised returns but are based upon the facts discovered on the basis of the revised reports obtained in respect of the parties whose names were reflected in the revised return for 2011-12. It was submitted that, therefore, the assessments carried out by the Assessing Officer are just, legal and proper and that the appellate authority was justified in insisting for payment of 25% of the total dues as pre-deposit and, therefore, the Tribunal was justified in directing the appellant to deposit Rs. 10,00,000/- and Rs. 5,00,000/- respectively by way of pre-deposit. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case came to be filed by the Assistant Commercial Tax Officer, Kalol. While the first information report has been filed against unknown persons, subsequent investigation has revealed the complicity of the ex-partner of the appellant and two others and, accordingly, a charge-sheet has been filed against them for various offences under the Indian Penal Code. From the charge-sheet filed by the police, it appears that the retired partner filed manual revised return in the name of Shilp Speciality for the year 2011-12 and showed false sales and purchases before the Commercial Tax Officer at Kalol. That the accused No.2 therein, who was carrying on business in the name of Himanshu Trading Company, had made certain sales to one Yogesh Mahendrabhai Patel of Ture Value Paper and had given some bills of such sales in the name of Shilp Speciality and in respect of the amount paid towards the bills that were given to Shilp Speciality, the accused No.3 therein had withdrawn and transferred the same from the bank and had committed fraud. 8. Thus, the allegations in the first information report and the charge-sheet are against the ex-partner of the appellant and two others. No allegation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why in the facts and circumstances of the case, such pre-deposit was necessitated and has mechanically reduced the amount of pre-deposit. If one considers the regular returns filed by the appellant, it is apparent that it carries on business on a small scale and its annual turnover is around ten to twenty lakh rupees. While considering the question of pre-deposit, the Tribunal was required to keep in mind this aspect in mind, inasmuch as, a person with such a small scale of business would not be in a position to pay even the reduced amount of pre-deposit. Moreover, having regard to the fact that there is not even a whisper of an allegation against the appellant insofar as the commission of fraud by filing revised return is concerned, at least for the purpose of waiver of pre-deposit the appellant ought to have been given the benefit of doubt and permitted to prosecute the appeal without saddling it with the onerous liability of making pre-deposit of amounts beyond its capacity. Considering the backdrop of the case, this court is of the view that the Tribunal was not justified in not granting complete waiver in payment of pre-deposit to the appellant. 10. In the light of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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