TaxTMI 
TaxTMI 
2009 (9) TMI 898
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.... his jurisdiction under section 12A of the Act. The basic dispute is as to whether the total amount of Rs. 5,79,06,193 was a turnover, which in fact had escaped assessment in terms of the original assessment order and if so, was required to be brought to tax and the assessee/dealer called upon to pay the commensurate tax liability, as it arises under the provisions of the Act. The assessing authority was of the view that a turnover adding to Rs. 5,79,06,193 which comprised of stock transfer of iron and steel, in the form of M. S. plates and hot plates, which had been transferred from the head office of the dealer at Bhavanagar in Gujarat to its branch office, at the very place of its new production unit at Hassan, representing the value of Rs. 25,81,737 against F form No. 89985-6 and a further amount of Rs. 1,24,84,077 under F form No. 959937-45 and the balance amount, that is, the turnover was attributable to inter-State purchases, local purchases and such other acquisition of iron and steel as scrap or in any other form. It is the version of the assessee that M/s. Haryana Steel and Power, the dealer is a division of M/s. Haryana Ship Breakers Limited, Bhavanagar, ....
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....ectness of the figures that were disputed and it was also clarified that the stock transfer was during the year only, as noticed earlier under the form F declaration 89985-6 and 959937-45 and it did not add up to Rs. 5 crores, etc., but it was only Rs. 1.5 crore and odd. The assessee claimed that its books of account and balance sheet have reflected the capital addition to its assets, particularly, capital addition of the assets of the assessee's factory at Hassan and it had commensurate bills, books of account and other supporting materials to demonstrate that the iron and steel representing the value of Rs. 5,73,62,019 had actually been utilized by capitalising the same into plant and machinery at its Hassan unit. The assessing officer though gave opportunities to the assessee to come up with supporting material to demonstrate that the iron and steel representing turnover of Rs. 5,79,06,193 was actually utilized for erecting plant and machinery of the assessee at its Hassan Sponge Iron Production Plant, but the assessee having not availed of the opportunity to come up with commensurate proof or supporting material, was forced to confirm to the show-cause notice and accordi....
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....not be restored. The assessee responded to this notice in terms of reply dated April 1, 2009. The Additional Commissioner examined the correctness or otherwise of the order passed by the Appellate Commissioner within the scope of section 22A of the Act and the facts as they prevailed and in the light of the reply caused by the assessee. The Additional Commissioner found that while the reasoning and the conclusion of the assessing authority was fully justified in the facts and circumstances of the case and in the wake of the assessee, failing to establish with commensurate evidence that the iron and steel of the value of Rs. 5,46,30,493 had actually been utilized in the setting up of plant and machinery at Hassan, the Appellate Commissioner had without any corresponding material or proof, placed before him, merely on the basis of some claims and on the production of some books and balance sheet, etc., erroneously reversed that finding and conclusion that the order was not only not correct but prejudicial to the interest of Revenue and in this view of the matter, set aside the order of the Appellate Commissioner and restored the order of the assessing authority. It is agg....
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....rding any evidence to show that the sale of iron and steel was effected and on the contrary the expert evidence shows capitalization of such iron and steel procured from another division of the same company? (e) Whether in facts, figures and circumstances of the case the respondent-authority was justified in rejecting all the expert evidences and certificates produced to hold that iron and steel is not used in the factory for construction of plant and machinery?" After hearing Chidananda Urs at the threshold for admission, of the appeal as we were not very satisfied that the appellant had made out any valid and tenable question of law, which merited examination in this appeal, but nevertheless, to be fully satisfied of the legality of the order of the Commissioner, we had thought it fit to issue notice to the respondents through the learned Additional Government Advocate, in terms of our order dated September 8, 2009 as under and the matter has come up thereafter. Today, we have further heard Shri Indra Kumar, learned senior counsel appearing for the appellant and for our satisfaction sought clarification from Smt. Geetha Menon learned Additional Government Advocate appear....
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.... and steel, memorandum and articles of association do not also establish this fact. When the respondent has failed to establish this fact, it is absolutely irregular to consider such plea of use of iron and steel in the fabrication of plant and machinery. In the circumstances, the assessing authority is justified in estimating the turnover of iron and steel against inter-State receipts/purchases of steel scraps. It is important to note that books of account and evidences in support of the claim of use of iron and steel scrap in captive consumption were never produced before the assessing authority. Same is the position before the appellate authority except the statements, audit reports and the like filed before him. The respondent did not produce books of account and evidences deliberately before the assessing authority due to the fact that he cannot prove the fact of alleged use of iron and steel scrap in captive consumption. In the absence of clinching evidences, it was wrong for the appellate authority to consider the said claim. The assessing authority is seem to have closely verified monthly statements and the returns in addition to the requisitions for F forms and certificate....