9911796707
TMI Blog2019 (4) TMI 1637X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded and if there is any adverse remarks is made by the said third party, then the assessee is entitled to cross examine the third party on the imputations made by the third party against the petitioner/dealer. Unfortunately, the Tribunal did not make a follow up exercise to consider as to whether the findings are correct or not but was carried away by the findings of the Assessing Officer which infact was set aside by the First Appellate Authority. The Tribunal was expected to independently assign reasons as to why it is confirming or setting aside the order of the First Appellate Authority. The Tribunal also committed a serious error by drawing adverse inference against the petitioner/dealer on account of the absence of transporter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of the case, the levy of penalty under Section 16(2) of the Act is justified? 3. We have heard Mr.K.Narayanan for Mr.N.Inbarajan, learned counsel appearing for the petitioner and Mr.V.Hari Babu, learned Additional Government Pleader for the respondent. 4. The case on hand has a chequered history which pertains to an assessment under the provisions of the Central Sales Tax Act, 1956 for the assessment year 1995-96. The assessee is a registered dealer under the provisions of the TNGST Act and CST Act on the file of the respondent. The Assessing Officer acted upon the D VII report based on the enforcement findings and reopened the assessment for the relevant assessment year. According to the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04, in appeal No. CST 59 of 2004. It would be useful to refer to the findings rendered by the First Appellate Authority as to why he came to the conclusion that the matter has to be remanded to the Assessing Officer for cross examining the owners of the lorry booking offices. 10....... As such there had been no assessable inter-state sales turnover in existence having not escaped from assessment on records, the closed assessment of the appellants for the year 1995-96 under the CST Act cannot be re-opened basing vague information such as date, lorry number, destination place and amount of freight reflected in the records of third party-lorry booking offices and assessment on best of judgment cannot be made as per ratio of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be drawn. 7. To be noted that the assessment has been reopened by the Assessing Officer suspecting that transactions were not accounted for. Though, there was suspicion in respect of 338 transactions, only 9 transactions fell under a cloud as petitioner was able to establish their genuineness in respect of 329 transactions. Thus, if the Department is of the view that transactions were doubtful, it is they who have to produce evidence to prima facie establish the same, only thereafter, the burden of proof shifts on petitioner/ dealer. However, the parties who are summoned for cross examination did not turn up, then adverse inference cannot be drawn against the petitioner/dealer and no best judgment assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantity, value etc., are not at all found recorded in the extract recovered from the lorry shed. Thus, it is clear that orders passed by the assessing officer is purely a surmise and not based on any evidence on record to prove the contentions that the appellants have actually effected interstate sales of goods. Finally, it can be seen that the directions of Appellate Assistant Commissioner (CT), Salem in his remand order and without conducting any cross examination with the parties from whom the records were recovered based on which the assessment was made. The entire assessment passed by the assessing officer is purely an arbitrary one and therefore, it is not found sustainable. 9. The Tribunal had to test the correctne ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
