9911796707
TMI Blog2019 (12) TMI 1168X X X X Extracts X X X X X X X X Extracts X X X X ..... le turnover in the hands of the Assessee. The Assessee had entered into a series of sale of Doubling machines to the same Company viz., M/s.Anand Cotspin Limited and two Invoices were duly recorded for in the assessment period in question for the year 1995-96 and the third sale took place under Invoice No.3 dated 29.06.1996. The Proforma Invoice included in the Slip No.4 was neither serially numbered nor any date has been mentioned and therefore, merely on the basis of mention of the Proforma Invoice in the said statement, the Assessing Authority could not have imposed tax on the same as suppressed sale - merely on the alleged failure to produce the said Proforma Invoice as indicated in Slip No.4, the authorities below cold not have arrived at the conclusion of a suppressed taxable turnover in the hands of the Assessee during the year 1995-96. The third machinery was admittedly sold by the Assessee in the next year 1996-97 under Invoice No.3 dated 29.06.1996 which has been accounted for in the next year and there is no dispute on that issue. All the three authorities below have erred concurrently in holding that the Assessee had suppressed a turnover to the extent of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As the dealers have deliberately evaded the turnover for 95-96. Penalty under Section 9(2) of the CST Act 1956 read with section 12(3) of the TNGST Act 1959 is proposed at 1505 of the tax due on the actual suppression. Penalty proposed ₹ 96,618-00 To a notice issued, the dealers have filed objection on 20.11.98. They have contented that the Slip No.4 is a proforma invoice copy sent to M/s.Anand Cotspin Limited, Ahamadabad for arrangement of payments and it takes from 12 weeks to 6 weeks in some case to the complete the sale process. Explained the contentions raised by the dealers carefully. In slip No.4, the dealers have sold 3 numbers of Doubling machine to Tvl.Anand Cotspin Limited, Ahamadabad during 95- 96 through invoice No.43/10.1.96 and 46/5.2.96 and another one through proforma invoice for ₹ 6,44,118.00. Out of 3 cases 2 cases in bill No.43/10.1.96 and 46/5.2.96 have been accounted for in the account. But the sales through proforma invoice for ₹ 6,44,118.00 has not been accounted for in the account. In the objection the dealers have not clearly mentioned the reason f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced this sale invoice copy and convinced the Assessing Authority about the genuine of the transactions. They have not produced the copy of the sale invoice, the Sales Journal, the correspondence for changing the size and mass, the details of reduction of excise duty etc. before me also. In view of the above I am not inclined to accept their contention of raising sale invoice during 1996-97 since it is not supported by any evidence whatsoever. Moreover a verification of the entries in slip Number 4 reveals that there is a credit of ₹ 25,00,000/- to the account of Anand Cotspin Ltd. The two invoices raised are debited to their account and they are shown as deletion for ₹ 23,864/20. Payment for 3rd M/C Proforma Invoice - ₹ 6,44,118/- is also debited as on 5.2.1996 and the total balance due to the appellants is shown as ₹ 6,67,982.20. All these prove that they have, infact, effected sales of one machine, out of accounts, for ₹ 6,44,118/- in the guise of proforma invoice. Otherwise there is no necessity to debit this amount to the account of the purchaser. If it were only a quotation given where is the necessity to include this as payment due to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposal of the Assessing Officer, the appellants had claimed that it was only a proforma invoice given to enable the purchasers to arrange for payment, bank loan. But after lapse of 2-1/2 years, at the time of hearing of the first appeal, they contended that they had raised bill no.3 dt.29.6.96 for ₹ 5,21,277/- in respect of the proforma invoice. If it were true, the above fact could have been brought to the notice of the Assessing Officer when they filed their objections before the Assessing Authority on 20.11.98. The learned Appellate Assistant Commissioner has also rightly observed that they have not produced the copy of the sale invoice, proforma invoice, sales journal, correspondence for change in size and mass, details of reduction of excise duty etc., at the time of hearing of the appeal. Even now, the appellants failed to produce the copy of the proforma invoice against which the entire issues are evolving around. Therefore, under the given facts and circumstances of the case, we are not inclined to accept the contention of raising sale invoice during 1996-97 since it was not supported by any strong evidence, whatsoever. Hence, the reasoning given now are found to be n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To Invoice No. 43 6,44,118.00 5.2.96 To Invoice No. 46 6,44,118.00 24.6.96 By Draft Recd. 10,59,000.00 29.6.96 To Invoice No. 3 5,21,277.00 6.9.96 To Invoice No. 6 5,48,009.00 20.2.97 To Cheque No.607996 1,37,744.00 37,26,911.00 35,55,250.00 1,71,661.00 7.The learned counsel for the Assessee submitted that since all the sales in question were duly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority and the same, in our opinion, could not be treated as suppressed sale taxable turnover in the hands of the Assessee. The proforma invoice per se does not result in any taxable sale. No actual third sale during 1995-96 was established by Revenue before bringing it to tax. The burden lies upon the Revenue to prove that a taxable sale has taken place in the hands of the Assessee during the year in question on which the tax is sought to be imposed. 11.From the record, it is very clear that the Assessee had entered into a series of sale of Doubling machines to the same Company viz., M/s.Anand Cotspin Limited and two Invoices were duly recorded for in the assessment period in question for the year 1995-96 and the third sale took place under Invoice No.3 dated 29.06.1996. The Proforma Invoice included in the Slip No.4 was neither serially numbered nor any date has been mentioned and therefore, merely on the basis of mention of the Proforma Invoice in the said statement, the Assessing Authority could not have imposed tax on the same as suppressed sale. The explanation furnished by the Assessee that the Proforma Invoice is indicated in the said statement to send the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
