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TMI Blog2018 (3) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... vit. The other paragraphs in the counter affidavit deals with the burden of proof and on whom it lies etc. A reference has been made to Sections 10(2) and 3(2) of the TNGST Act in this regard. This Court has no hesitation to hold that the impugned proceedings is wholly vitiated on account of total non-application of mind and being devoid of reasons. The matter is remitted to the respondent for fresh consideration who shall afford adequate opportunity to the petitioner to cross-examine the third parties and after examining all the records, the respondent shall redo the assessment in accordance with law - Petition allowed by way of remand. - W.P.No.27902 of 2005 W.M.P.No.30330 of 2005 - - - Dated:- 5-9-2017 - T. S. Sivagnanam, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealers and they have not reported the turnover to the Department and therefore, the petitioner has shown the purchases from bogus and non-existing dealers and they have not proved the sufferance of tax at the earlier stage and therefore, the respondent proposed to deny the second sale exemption and levy tax on the said transaction. The respondent also proposed to levy penalty under Sections 12(3)(b) and 10(3) of the TNGST Act. The petitioner submitted their representation dated 20.05.2005, wherein it has been pointed out that they have produced all the necessary particulars relating to the transactions done by them. Payment particulars were also produced by them as they were effected by cheques. The petitioner denied the allegations made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjections dated 03.06.2005. 5.What is interesting to note is, in the counter affidavit filed by the respondent in this writ petition which was filed only during 2009, a slightly different stand has been taken with regard to the four selling dealers. Two of them are stated to be not found, the reason being that no returns have been filed about those two dealers in their respective assessment circles, they being M/s.Sri Mahavir Traders and M/s.Kumar Enterprises. The other two dealers, viz. M/s.Sri Lakshmi Enterprises and M/s.Navakar Enterprises are stated to have stopped the business on 19.08.2003. Therefore, the stand taken in the impugned order that they are bogus dealers / bill traders, appears to be factually incorrect and inconsistent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he allegation that the petitioner had effected business with bill traders and bogus dealers, the petitioner wanted copies of statements and an opportunity to cross-examine such of those persons who are stated to have been given statements which would be adverse to the interest of the petitioner. This request made by the petitioner was not considered and no opportunity of cross-examination was afforded by the respondent. Thus, when the respondent proposes to rely upon the statements and records of third parties and if such material has been collected behind the back of the petitioner, then the petitioner is entitled to dispute the correctness of the statements and the efficacy and admissibility of such statements have to be tested, for which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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