TaxTMI 
TaxTMI 
2015 (11) TMI 261
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....x court in Tata Engineering and Locomotive Co. Ltd. v. Assistant Commissioner of Commercial Taxes, Jamshedpur reported in: [1970] 26 STC 354 (SC)? (3) Whether, in the facts and circumstances of the case, the Tribunal was correct in having concluded that the appellant had sold only HDPE bags and not HDPE fabrics solely on the basis of the description adopted by transporter in his lorry way-bills de hors the other materials like purchase orders, invoices which prove otherwise? (4) Whether, in the facts and circumstances of the case, the Tribunal was right in having restored the assessment made by the assessing officer solely on the premise that statement recorded by the Transporter in favour of this appellant cannot be accepted? T.C. (A) No. 42 of 2014: (5) Whether the Tribunal was correct in having confirmed the levy of penalty under section 12(5)(iii) of the TNGST Act, 1959 on the face of the fact that all figures were culled out from the lorry way bills maintained by this appellant in the regular course of business and claimed as exemption and not a best judgment assessment in stricto senso? T.C. (A) No. 43 of 2014: (6) Whether....
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....d surcharge of Rs. 3,524, additional surcharge of Rs. 3,524, additional sales tax of Rs. 16,270 and penalty of Rs. 50,429 being 150 per cent of the tax due on the actual suppression levied without quoting the section under which he had levied penalty. Again, the aggrieved assessee preferred an appeal before the Appellate Assistant Commissioner, who vide his order dated October 11, 2004 made in A.P. No. 187/02, based on records produced and arguments put forth, set aside the addition made and allowed the appeal with consequential levies of surcharge, additional surcharge, additional sales tax and also penalty levied by the assessing officer. Not satisfied with the order of the first appellate authority, the State has preferred an appeal before the Tribunal seeking restoration of the assessment made on the turnover of Rs. 6,11,263.50 pertaining to the claim of sales of HDPE fabrics and also surcharge of Rs. 1,528, additional surcharge of Rs. 1,528, additional sales tax of Rs. 16,270 besides penalty of Rs. 50,429. 4. For the assessment year 1988-89, the assessee was originally assessed on a total and taxable turnover of Rs. 42,49,530 and Rs. 22,75,457, respectively under the TNGST ....
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....ng with consequential surcharge, additional surcharge, additional sales tax are sustainable? (ii) Whether the levy of penalty under section 16(2) of the Tamil Nadu General Sales Tax Act, 1959 for the year 1987-88 (STA No. 393/06) and levy of penalty under section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 for the year 1988-89 (STA No. 468/06) are warranted?" 6. The Tribunal rejected the claim of the assessee with regard to the first point holding as follows:- "11. While the assessment relating to the year 1987-88 was the revision assessment proceedings, the assessment pertaining to the year 1988-89 was the original assessment proceedings. In the first round of litigation, this Tribunal, while remanding the cases back to the assessing officer for de novo assessment, had categorically held that if at all disallowance is to be made, it ought to have been only with reference to the records so secured. This Tribunal has also recorded a very clear finding to the effect that as rightly pointed out by the learned State Representative, the assessment of Tvl. Indag Products Limited does not show any indication of the buyers having incurred the stitching cha....
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....accordingly invoices were raised on them stating that the products sold were only 'HDPE fabrics'. This contention is not acceptable on the ground that when the products sold by the assessees were only HDPE fabrics, there is no necessity to mention in the lorry way bills, the description of the item as 'HDPE bags'. This contention is not acceptable on the ground that when the products sold by the assessees were only HDPE fabrics, there is no necessity to mention in the, lorry way bills, the description of the item as HDPE bags', it is to be mentioned here that Tvl. Southern Roadways Limited being a transporter could have easily mentioned in the recovered lorry bills that the item transported were only HDPE fabrics, had the items transported were really HDPE fabrics. 13. Perusal of D7 records recovered along with the assessment records would reveal that the assessing officer had rightly held that the items which were transported were only HDPE bags even though in the invoices they had mentioned as HDPE fabrics as it had been categorically proved through the recovered lorry way bills that they had only HDPE bags and however they had raised invoices as if t....
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....year 1987-88 and 1988-89 are only Rs. 12,228 and Rs. 28,615, respectively, and paucity of time we are of the considered view that levy of maximum penalty at 150 per cent of the tax due is not at all fair in these cases and therefore we are of the considered view that only the penalty at 75 per cent of the tax due would be fair and meet the ends of justice. Hence we, by setting aside the order of the first appellate authority for both the years fix the penalty at Rs. 25,215 for the year 1987-88 and Rs. 28,196 for the year 1988-89." 8. Aggrieved by the orders of the Tribunal, the assessee has filed the present tax case (revisions). 9. Heard learned counsel appearing for the assessee and the learned Special Government Pleader appearing for the Revenue and perused the materials placed before this court. 10. We are not inclined to go into the first order passed by the assessing authority. The disputed question of fact as pointed out by the learned counsel appearing for the petitioner is that what was found as discrepancy in relation of the assessment year 1987-88 is 16 slips and for the assessment year 1988-89, 4 slips. That order has already been set aside by the Tribunal and ....
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.... turnover of Rs. 13,01,595. It was further proposed to levy penalty at 150 per cent of the tax, SC, ASC due on the actual suppression of Rs. 6,11,263 as found on inspection." 12. The above proposal was confirmed based on D7 records. Similarly, for the assessment year 1988-89, based on the remand order of the Tribunal the proposal was made in the following manner:- "4. In view of the above, it was proposed to revise the assessment of the dealers for the year 1988-89 under the TNGST Act 1959 as detailed below, after due verification of the records and statements, in pursuance of the order of the Tamil Nadu Sales Tax Appellate Tribunal read above. Taxable turnover as per returns and accounts (Sales of sacks from 1.7.88 to 6.10.88 Rs. 3,52,180.00 5% Sales of sacks from 7.10.88 to 31.3.89 (G. O. P 1316 dated 7.10.88) Rs. 9,54,978.00 2% Add: Sales of bags as per D7 records recovered at the time of inspection on 4.8.88 (sales up to June 88) Rs. 6,26,561.55 5% Taxable turnover proposed to be refixed Rs. 19,33,720.00 Add: Exemption claimed but restricted and allowed Rs. 23,15,811.00 Total turnover pr....