TaxTMI 
TaxTMI 
2013 (11) TMI 613
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....al scrap in and outside the State of Gujarat. It is also registered as a dealer under the Gujarat Sales Tax Act, 1969 and under Central Sales Tax Act, 1956. 3.1 For the assessment years 2003-04 and 2004-05 under SARAL Assessment Yojana, the returns were filed by the appellant-assessee and the assessment orders were passed by the Assessing Officer respectively on January 09, 2006 and March 14, 2006. 3.2 On March 10, 2006, the Assistant Commissioner of Income-tax (1), Enforcement Division-2 visited the place of business and residence of the appellant assessee, during which they verified all the books of accounts and relevant material and thereafter, the authority seized the Purchase Bills' file, Sale Bills' file and other relevant material. The Visiting Officer showed some bills, delivery challans and transport receipts, regarding sale outside State of Gujarat, which were not found in the books of accounts maintained by the appellant-assessee. Despite the resistance, the appellant-assessee was directed to make payment of tax, interest and penalty with regard to those transactions which, according to the authorities, were not forming part of the regular books of accounts. Such mater....
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....ving entered into the alleged transaction, the Tribunal was justified in holding that the burden to prove the existence of such transaction is not on the department ? (ii) Whether in the present facts and circumstances, the Tribunal was justified in confirming the addition of to the turnover on the grounds of it being not recorded in books of accounts whilst deleting the penalty by granting the benefit of doubt about the transactions existence to the Appellant ?" 4. We have heard extensively Ms.Gargie Vyas, learned advocate appearing on behalf of M/s.Wadia Ghandy & Co. for the appellant-assessee, who vehemently and tenaciously made her submissions. It is urged by her that the First Appellate Authority has acted contrary to law by adding 100% to the turnover without any basis by applying the best judgment concept when there is nothing on record as to how much of turnover was suppressed. It was incumbent upon the Department to verify and cross-check the transactions to prove that the inter-State sale transactions indeed had taken place. She further urged that the Tribunal erred on facts and in law while confirming such order of the First Appellate Authority and, theref....
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....ellant-assessee, these authorities were ad idem on the premise that the manner in which the books of accounts are maintained by the appellant-assessee and the modus operandi adopted by it, revealed breach of provisions of law necessitating employment of the best judgment provision. When all the authorities on facts have concurrently held against the appellant-assessee and in favour of the Revenue, unless the appellant assessee points out any perversity going to the root of the matter, this Court is not to disturb such concurrent findings. 6.3 At this juncture, section 35 of the Gujarat Value Added Act, 2003 requires reproduction, which speaks of the situation where the turnover of the assessee has escaped the assessment. It would be profitable to reproduce the provisions of section 35 of the Act as under : "35. Turnover escaping assessment. (1) Where after a dealer has been assessed under section 32, 33, 34 for any year or part thereof, the Commissioner has reason to believe that the whole or any part of the taxable turnover of the dealer in respect of any period has, - (a) escaped assessment, or ....
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....illegally made best judgment determination, the said contention of adding of 100% of the total turnover has no merit at all and that again cannot give rise to any substantial question of law. 6.7 As could be noticed by the detailed reasonings given by the First Appellate Authority, it has recorded extensively that in absence of inter-State sale transaction in the books of accounts, no bills were found, no such transactions were found in the books of accounts and yet, they have been found to be carried out in fact. It also further appears that there was a remarkable difference in the stock actually found and the one recorded in the books of accounts. It was further noted that the sale transactions were not tallying with the lorry receipts, sales' bills and delivery challans collected by the Department at the time of visit to the residential and business premises of the appellant-assessee, where the numbers were handwritten and were not printed serially. No satisfactory reasons and explanation had come forth when the inquiry was made and that eventually led the authority to conclude that with a view to avoid the payment of tax, there was a suppression all around. 6.8 In such eventu....