AI Drafter 
TaxTMI 
TaxTMI 
2003 (9) TMI 7
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....enalty in relation to trade advances of Rs. 3,20,000 received from various traders, against supply of goods and in pursuance of which goods were duly supplied to them?" Briefly stated the facts of the case are that the assessee is an individual engaged in trading in precious and semi-precious stones under a proprietorship of M/s. Asian Arts, Jaipur. The return was filed by the assessee showing the income of Rs. 56,453, on June, 28, 1985 which was revised on March 29, 1988 and March 28, 1989. In the second revised return filed on March 28, 1989 the assessee has added the income advanced against sales amounting to Rs. 4,20,000. The Assistant Commissioner of Income-tax Investigation (Circle-I), Jaipur, made the assessment of the assessee at the income of Rs. 7,76,600. On the first appeal the Commissioner of Income-tax (Appeals), Rajasthan-I, Jaipur, deleted the addition of Rs. 91,407 and further set aside the part of other addition. The setting aside of the assessment was made on April 2, 1991 and the income was finally determined at Rs. 6,45,518 as against Rs. 6,41,740 disclosed by the assessee in the second revised return. The penalty proceedings were initiated against the ass....
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....ax Act, and they provided declaration ST 17 and, therefore, no sales tax was charged. Sales tax registration number is duly mentioned. It is urged that confirmation of letters duly signed by the proprietor with addresses were submitted. The sales were made through brokers. In the parties bank accounts the relevant cheques were duly found recorded. In his submission the assessee had duly discharged his burden. It has next been contended that on the same material produced by the appellant, the Tribunal accepted his explanation for advance receipts against the sale of Rs. 1,00,000. It has further been contended that the provisions of sub-section (4A) of section 132 of the Act, 1961, come to the rescue of the assessee and thus by mere production of these facts produced by the assessee the burden which was on him stands discharged. In his submission the learned Tribunal has not considered the case of the assessee with reference to the said proviso. In support of his contentions learned counsel for the assessee placed reliance on the following decisions: (1) CIT v. Suresh Chandra Mittal [2000] 241 ITR 124 (MP); (2) CU v. Suresh Chandra Mittal [2001] 251 ITR 9 (SC); (3) Shiv Lal ....
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....e assessee was more than sufficient to accept that this amount was advance receipt of the money against the supply of the goods. It is not in dispute that the appellant has not produced any person out of the four persons from whom these amounts were taken, either before the Assessing Officer or in the penalty proceedings. Learned counsel for the appellant submitted that he raised the bills for the supply of these goods against the amount received. In the bills the sales tax number of these persons have been mentioned and sales tax was not charged as ST 17 form has been supplied by these purchasers. Learned counsel for the appellant has failed to show any material from the record of the case of the appeal that the goods were actually and physically delivered to these four persons. Learned counsel for the appellant, on the suggestion of the court, does not dispute that there is no documentary evidence on the record to show that goods, for which the bill have been raised, have been delivered to the alleged purchasers thereof. In the absence of this important and relevant evidence, it has rightly not been accepted by the learned Tribunal that this amount of Rs. 3,20,000 was received....
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.... of Rs. 1,00,000 that has been accepted and to that extent the penalty imposed has been set aside by the learned Tribunal. It is not correct to contend by learned counsel for the appellant that the finding of the Tribunal on these two amounts was based on the same material. We find from the judgment of the learned Tribunal that as regards the amount of Rs. 1,00,000 which was deposited with the appellant by Amit Enterprises through its proprietor, Shri Sudhir Kumar, Rs. 50,000, Shri Om Prakash Ghiya Rs. 25,000 and Shri Kamal Kumar Kasliwal Rs. 25,000, there is strong evidence on record to establish their genuineness. These creditors, as per the finding of fact recorded by the learned Tribunal, are stated to be existing assessees. When those persons were existing assessees the learned Tribunal is correct in its approach that the Assessing Officer is to make enquiries of this aspect of the matter. Having regard to the fact that the credits were taken from the existing assessees, this exercise has not been undertaken. A fact which was confirmable from the record of the Department itself, has not been confirmed and thus rightly the benefit has been given by the learned Tribunal to the a....