Penalty cannot rest on presumption where goods are billed, recorded in books, and the statutory basis is not proved.

Penalty under section 13A(4) cannot be sustained on assumption or presumption where the goods are supported by bills and reflected in the assessee's books of account. The authority must establish from the record that the goods were not accounted for and that the statutory basis for penalty exists. Where the first appellate finding showed the consignment was billed, entered in the books, and tax-paid, an unsupported inference that the entries were ante-dated was insufficient. The jurisdictional fact required for penalty was therefore absent, and the penalty order could not stand.

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Issues: Whether penalty under section 13A(4) could be sustained when the goods were shown to have been covered by bills and reflected in the assessee's books of account.

Analysis: Penalty could not rest on assumption or presumption. The authority was required to establish, from the material on record, that the goods had not been accounted for and that the statutory basis for penalty existed. The revisional court noted that the first appellate authority had found the consignment to be supported by bills, recorded in the books, and tax paid. In these circumstances, the Tribunal's inference that the entries were ante-dated was unsupported, especially when the proceedings were confined to whether the goods had been omitted from the prescribed records and did not require proof of an attempt to evade tax.

Conclusion: The jurisdictional fact necessary for imposition of penalty was absent, and the penalty order could not be sustained.

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