AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2013 (3) TMI 521
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....10 to Additional Commissioner, Commercial Tax, Moti Mahal Guna. It is mentioned in the letter that the Anti Evasion Bureau investigated the transaction of M/s C.P.Industries, M/s Asha Oil Industries and M/s Hajarilal Sandeep Kumar and also investigated the transactions of transporters New Dixit Transport and Gupta Transport Company and came to the conclusion that M/s Hajarilal Sandeep Kumar, Gwalior is a bogus firm and it was constituted by M/s C.P. Industries in order to evade tax. The Anti Evasion Bureau also received information from Udi Barrier (U.P.) and came to the conclusion that M/s C.P.Industries and M/s Asha Oil Industries have made transactions through M/s Hajarilal Sandeep Kumar. The Anti Evasion Bureau also took a note of the fact that Income Tax Department also assessed the tax of M/s C.P.Industries on the basis of transactions in the accounts of Gwalior Nagrik Sakh Samiti Maryadit and assessed the liability of income tax of M/s C.P.Industries. Anti Evasion Bureau came to the conclusion that these firms have evaded payment of tax of near about rupees twelve crores. 4. After receiving the letter dt.4.10.2010, a show cause notice under Sections 18 (4), 20 (5), 20 (6), ....
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....e aforesaid firm. The petitioner further raised an objection that for the year 2006-07 on the basis of the documents of Punjab and Sindh Bank and Citizen Credit Cooperative Society, the total sale was shown of Rs. 97,22,70,800/-, however, after assessment of tax, total sale has been shown as Rs. 59,44,83,900/-. Hence, in the enquiry report of Anti Tax Evasion Bureau the extra sale of Rs. 37,77,86,900/- has been shown and the basis of the aforesaid conclusion is the entries in the bank account of Punjab and Sindh Bank and the Citizen Credit Cooperative Bank. The aforesaid conclusion is erroneous because the entries are not in regard to sale and the entries are of personal transactions of different identities. It is further submitted that in come tax department seized the account books in the year 2008 and those have not been returned. Photo copies provided to the petitioner are not readable, hence, the firm is not in position to file proper reply. Similarly for the year 2008-09, on the basis of the entries in Punjab and Sindh Bank, total sale of Rs. 5,12,15,354/- has been shown, however, the details of the entries have not been supplied. The petitioner further filed the reply and st....
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....iminary objection about the maintainability of the petition on the ground of availability of alternative remedy. Learned Dy.Advocate General further submitted that the authority has considered all the evidence on record properly and this court has no power to appreciate the findings of facts which are based on cogent reasons. In support of his contentions, learned Dy.Advocate General relied on the judgment of the Hon'ble Supreme Court in the reported in Union of India and others Vs. SICOM Limited and another reported in 2009 (2) SCC 121. 10. The findings of the authorities are based on the following facts : (i) The authorities relied on the enquiry report of Anti Evasion Bureau and the record seized from New Dixit Transport Commission Agent. It has been held that for the year 2006-07 on the basis of the enquiry report of M/s Dixit Transport Commission Agent, the sale is Rs. 12,90,00,000/Similarly, for the year 2007-08, the sale is Rs. 2,05,00,000/and for the year 1.4.2008 to 6.8.2008, the sale is of Rs. 25,00,000/-. Similarly the authority has also considered the information in deciding the sale on the basis of the tax fixed by the Income Tax Department, the department quanti....
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....ng as to whether there had been any implied condition of transfer, burden of proof wherefor would be on the Revenue. Consideration of (sic for) a part of goods may be held to be a condition precedent for constituting a sale, but therefore each case must be judged on its own facts." 13. Hon'ble Supreme Court in the aforesaid case has further held that there is a quite difference between the assessment of income under Income Tax Act and assessment under Sales Tax Act. Hon'ble Supreme Court has held as under after relying on the earlier decision of the Hon'ble Supreme Court in Girdhari Lal Nannelal v. CST reported in (1976) 3 SCC 701, : "15. The High Court furthermore committed a serious error insofar as it failed to draw a distinction between the assessment under income tax and assessment under sales tax. Whereas income tax is levied on income under the Income Tax Act irrespective of the sources from which such an income had been derived, sales tax is levied only on the quantum of sales and, therefore, element of transaction of sale is a prerequisite for levy of sales tax. This aspect of the matter has been considered by this Court in Girdhari Lal Nannelal v. CST wherei....
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....leteness of the return by the assessee and right of the assessee to cross examine the witnesses : "The opportunity to prove the correctness or completeness of the return would, therefore, necessarily carry with it the right to examine witnesses and that would include equally the right to cross-examine witnesses examined by the Sales Tax Officer. Here, in the present case, the return filed by the assessee appeared to the Sales Tax Officer to be incorrect or incomplete because certain sales appearing in the books of Hazi Usmankutty and other wholesale dealers were not shown in the books of account of the assessee. The Sales Tax Officer relied on the evidence furnished by the entries in the books of account of Hazi Usman Kutty and other wholesale dealers for the purpose of coming to the conclusion that the return filed by the assessee was incorrect or incomplete. Placed in these circumstances, the assessee could prove the correctness and completeness of his return only by showing that the entries in the books of account of Hazi Usmankutty and other wholesale dealers were false, bogus or manipulated and that the return submitted by the assessee should not be disbelieved on the basis o....
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.... has not examined the aforesaid witness. It has simply relied the statement of the transport agent before the Anti Evasion Bureau, which were the part of the report of Anti Tax Evasion Bureau. 18. From the perusal of the orders passed by the authority it is clear that the authority has fixed the amount of sale, which was escaped from income, on the basis of the report submitted by the Anti Evasion Bureau. However, the authority was performing the quasi judicial function. Hence, it was obligatory on the part of the authority to arrive on its own findings and the authority was obliged to adopt the procedure, which is known to the law. 19. From the perusal of the findings of the orders, as discussed above, in our opinion, the procedure adopted by the authority is against the law and perverse. The authority relied on the Income Tax returns and the findings of the enquiry report of New Dixit Transport Commission Agent without assessing the contents independently. Hence, there is no independent assessment by the authority in regard to total amount of sale. Hence, it is perverse and against the law. 20. Hon'ble Supreme Court in the case of Agarwal Oil Refinery Corporation Vs. Commi....
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....ed to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus preeminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court." 9. In Harbansal Sahnia v. Indian Oil Corpn. Ltd., enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, this Court observed thus: "7 that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of ....
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....asion of tax agreed to by the dealer in any forum; (c) The Commissioner shall proceed to assess the amount of tax evaded by the dealer during a block period in accordance with the provisions of this Act and the amount in respect of which option to pay lump sum has been exercised under clause (a) shall be excluded from the amount of evasion of tax assessed under this clause; (d) the total evasion of tax relating to the block period shall be assessed irrespective of the year or years to which such tax relates and irrespective of the fact whether regular assessment for any one or more of the relevant years is pending or not; (e) the assessment under this section shall be in addition to the regular assessment in respect of each year included in the block period; (f) the total evasion of tax relating to the block period shall not include the tax assessed in any regular assessment or the tax paid alongwith the returns filed by the dealer as tax of such block period; (g) the tax assessed under this section shall not be included in any regular assessment of any year included in the block period; (h) where the dealer proves to the satisfaction of the Commissioner that any part of the ....