9911796707
TMI Blog2024 (8) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... e is unable to prove that the goods have already been subjected to tax, he will be deemed to be a first seller/first purchaser. The full onus of this burden falls on the petitioner and has, admittedly, not been discharged in this case - the conclusion of the Tribunal to the effect that the levy of purchase tax is warranted in the absence of any material to support the petitioner's stand contains no infirmity and we confirm the same. Whether the turnover of Rs. 8,68,432/- disallowed by the Assessing Authority on the export sales claimed by the dealer and confirmed by the Appellate Assistant Commissioner is correct? - HELD THAT:- There is a mismatch between the products purchased by the petitioner and those exported. Even if one were to take a stand that the hosiery yarn purchased by the petitioner had been utilised in the manufacture of the mens shorts that had been ultimately exported, there is no bifurcation available between the export turnover relating to mens shorts and the tops - the addition is confirmed. Whether the levy of penalty of Rs. 85,133/- by the Assessing Authority and confirmed by the Appellate Assistant Commissioner is correct? - HELD THAT:- Though learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner to establish the purchases of yarn. However, one consistent request of the petitioner was that, despite its inability to establish the factum of purchases, since the registration number of Parkin- Mills had been supplied, due enquiry may be made by the assessing authority into the transactions of Park-in-Mills that would serve to establish the petitioner s case. 6. In cases where the registration number of a selling/purchasing dealer is supplied, normally, the Assessing Authority is expected to look into the details in the context of the stand of the assessee, specifically to determine the veracity or otherwise of its stand and to ascertain whether the enquiry supports its claim. 7. However, in the present case, this appears to be an exercise in futility for the reason that Park-in-Mills is, evidently, not in possession of necessary materials that would support the stand of the assessee. Had such requisite particulars, such as purchase/sale bills/invoices been available with Park-in-Mills, there would have been no difficulty for the assessee to have procured them even at the first instance. 8. Hence and at this juncture, at a distance of nearly 20 years from date of impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only local purchase and second sales made by Tvl.Park-In-Mills there was no necessity for them to raise a delivery note only instead of raising second sales bill on the appellants. The appellants claimed that the earlier seller should have been assessed. I find that the appellants have not discharged their burden of proof under Section 10 of the TNGST Act and proved that they had effected tax suffered purchase only. 10. The Tribunal finds merit in the conclusions of both the lower authorities and confirms the same along with the factual findings recorded therein, by way of the impugned order. 11. We agree with the concurrent orders of the authorities. Section 10 of the TNGST Act, 1959 is entitled 'Burden of proof' and states that for the purpose of assessment of tax under the Act the burden of proving that any transaction or any turnover of a dealer is not liable to tax, shall lie on such dealer. The provision goes on to enumerate the consequence of non-discharge of the burden imposed stating that in the case of a claim of second sale, if an assessee is unable to prove that the goods have already been subjected to tax, he will be deemed to be a first seller/first purchaser. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e explanation tendered at the stage of assessment was that along with mens shorts that it had manufactured, tops had been purchased from other manufacturers and, the mens shorts and tops together, would constitute ensembles that had been exported. 16. In light of the admitted facts adumbrated above, it appears clear to us that there is a mismatch between the products purchased by the petitioner and those exported. Even if one were to take a stand that the hosiery yarn purchased by the petitioner had been utilised in the manufacture of the mens shorts that had been ultimately exported, there is no bifurcation available between the export turnover relating to mens shorts and the tops. 17. We are, at this stage, concerned with the claim under Section 5(3), which has been rejected by the orders of the authorities both on the lack of identity between the products manufactured and those exported, as well as discrepancies in facts and figures relating to the export documentation. In this regard, the findings of the Appellate Assistant Commissioner in order dated 11.09.2000 are relevant and read as follows: 5. (b).........In other words they have not given proper explanation as to how ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that the earlier sales were taxable sales and that the tax was really payable by their sellers.' 20. We find that the decision in the case of Govindan Co. (supra) is distinguishable on facts. The differences may be seen from the finding at paragraph 3 of the judgement in Govindan and Co (supra) as follows: 'To claim the benefit of tax on the ground that their sales are second sales, the petitioners need not show that their sellers have in fact paid tax and it is enough for them to show that the earlier sales were taxable sales and that the tax is really payable by their sellers.' 21. Thus, in that case, the factum of first sales was not in dispute at all, whereas in the present case, the respondents have categorically denied the factum of the first sales which the assessee was also not in a position to establish. In our view, this differentiation on facts would be critical based on which we reject reliance of the assessee on that judgement and confirm the addition. 22. Third issue: This issue relates to the levy of penalty under Section 12(3)(b) of the TNGST Act. Though learned counsel for the petitioner would submit that levy of penalty is excessive, the levy is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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