1992 (6) TMI 177

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....) Whether, in the facts and circumstances of the case, penalty under section 16(1)(i) of the Act was rightly imposed by the assessing authority? Brief facts giving rise to the present revision petition are that a survey was conducted of the business premises of the assessee on October 17, 1984, by the Anti Evasion Wing, and it was found that certain sales have been shown as taxpaid, whereas the assessee had no stock of the tax-paid goods on April 6, 1983, which was the relevant date on the basis of which the figures were taken. The assessing authority framed an assessment under section 10(4) and came to the conclusion that the sales of tax-paid goods is more in comparison to the opening stock and purchases till April 6, 1983 and, therefore,....

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....ities sold.   It is an individual transaction which has to be examined as to whether it is liable to tax or not. Since the transactions were not shown as taxable and were not proved to be tax-paid, the levy of penalty was also justified. The argument of Mr. Gupta on behalf of the assessee is that he has in fact paid the tax on the disputed transactions up to April 6, 1983 and the tax cannot be levied again on the same transaction. I have considered over the matter. Section 3 is a charging section which creates the charge and liability of a dealer in respect of sales or purchases, if they exceed the limit prescribed in the said section. According to section 2(s), "taxable turnover" has been defined to mean that part of the turn....

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....sales already claimed as tax-paid. If this interpretation is taken then the Revenue would not only be deprived of its legitimate tax at proper time but, it may result in evasion of tax if the assessing authority fails to thoroughly examine the books at the time of assessment with regard to the particular date and the position of tax-paid purchases, and sales on such date. With these observations I am of the view that if the assessee is in a position to show that the tax has already been paid in respect of the sale claimed as taxpaid sales of goods till April 6, 1983 that is such sales were out of tax-paid stock which was sufficient to cover the sales then there would be no liability of tax. Similarly if the assessee is able to prove that....