TaxTMI 
TaxTMI 
2018 (4) TMI 649
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....ion are that the respondents are the dealers in groundnut at pattukkottai. Purchased groundnuts from the dealers in Karnataka State through Commission Agencies. As per the purchases made from inter-state supplies in Karnataka State were not entered in their Acts. The assessment for the years 1991-92 and 1992-93 were reopened under Section 16(1) of the Tamil Nadu General Sales Tax Act 1959 on the basis of the extracts of purchases of groundnut communicated by the Enforcement Wing Officers of the department (i.e.the State of Karnataka). 3. Aggrieved against the same, the respondents/dealers have filed appeals before the Appellate Assistant Commissioner (CT), Thanjavur. The Appellate Assistant Commissioner (CT), Thanjavur in his order in Ap.Nos.353/2000, 332/2000, 373/2000, 279/2000, 278/2000, 354/2000, 280/2000, 281/2000, 71/2000, 72/2000, 61/2000, 60/2000, 75/2000, 93/2000, 68/2000, 71/2000, 96/2000, 98/2000, 65/2000, 64/2000, 70/2000, 59/2000, 67/2000, 66/2000, 62/2000, 65/2000 and 94/2000, dated 15.05.2001, upheld the revisionary orders of assessment and the consequential imposition of penalty made by the Assessing Officer. 4. Aggrieved by the same, the first appellate autho....
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....led to follow the decisions reported in 8 STC 770, 14 STC 642, 40 STC 278, which squarely apply to the case on hand. He further submitted that the decision in 68 STC 204, squarely applies to the case on hand, wherein it has been held that once the existence of a report on the documents seized, was not disputed, the burden is on the assessee to prove to the satisfaction of the Assessing Officer that no such transactions as alleged by the authorities took place. It is also the submission of the learned Additional Government Pleader (Taxes) that in the reported case, the court also observed that the assessee cannot throw the burden on the department to prove that there was a transaction as alleged by the department and that the dealer should have proved his assertion otherwise. 10. He further submitted that the Tribunal has failed to note that when the department secured documents relating to unaccounted business transactions of the assessee and that the said fact was made known to the assessee, it is for the assessee to show that the transaction indeed did not take place. Mere denial of the transactions involved in dispute will not shift the burden on the department. However, if t....
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....r than sale extracts of the selling dealers in the State of Tamil Nadu which is bad in law, since the dealers had regular business transactions with the Karnataka State dealers, and there were several batches of transactions, the selling dealers received monies from the assessees, the complete details of such transactions were mentioned in the show cause notices and made known to the assessees. Therefore, for the assessee to disprove the transactions. 15. He submitted that the Tribunal has failed to note that in the case law reported in 120 STC 224, wherein it has been held that where a prima facie was shown from out of records available in possession of the revenue, the rebuttal by producing cogent evidences shall have to come from the party involved therewith. In the case on hand, the assessee failed to discharge the burden fastened on them by their failing to let in any evidence in support of their stand on the issue. 16. Heard the learned Additional Government Pleader and perused the materials available on record. 17. On the contentions of the parties, the Appellate Assistant Commissioner (CT), Thanjavur, in his order dated 15.05.2001, while dismissing the appeal filed....
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....learly. The judgment is delivered in two separate decisions first by Honourable Bhagavati.J and the second by Honourable Fazel Ali.J. The court was disposing of civil appeals of the State and interpreted the provisions of best judgment assessment as provided for under section 17(3) of K.G.ST.Act read with rule-15 made under the Act. Facts of the case as stated briefly in the words of Honourable Bhagavathi J. are as follows:- In the assessments of the assessee to sales tax for the three assessment years, the returns filed by him on the basis of his books of account appeared to the Sales Tax Officer to be incorrect and incomplete since certain sales appearing in the books of account of one H as having been effected by the assessee in his favour were not accounted for in the books or account maintained by the assessee. The assessee applied to the Sales Tax Officer for affording him an opportunity to cross examine H in regard to the correctness of his accounts, but this opportunity was denied to him and the Sales Tax Officer made a best judgment assessment under Section 17(3) of the Kerala General Sales Tax Act 1963. The assessee appealed without success, but the High Court, o....
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....of being heard are to very wide amplitude but in the context the sales tax proceedings which are quasi-judicial proceedings all that the court has to see in whether the assessee has been given a fair hearing. Whether the hearing would extend to the right of demanding cross-examination of witnesses or not would naturally depend upon the nature of the materials relied upon by the sales tax authorities the manner in which the assessee can rebut those materials and the facts and circumstances of each case. It is difficult to lay down any hard and fast rule of universal application (Emphasis supplied). In this case, the court was dealing with an issue under the provision of the Kerala Act. It is for us to see if the decision would have equal impact on a situation created under the shadow of an altogether difference act. If it is possible to show that the Tamil Nadu Act is in pari materia with the Kerala Act, the decision of the Supreme Court will apply squarely to the Tamil Nadu Scenerio. The section under the Kerala Act is extracted below: If no return is submitted by the dealer sub-section (i) within the prescribed period, or if the return submitted by him appears to....
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....les Tax Officer can, after making such inquiry as he may consider necessary and after taking into account all relevant materials gathered by him, proceed to make the best judgment assessment and , in such a case, he would be bound under the proviso to give a reasonable opportunity of being heard to the assessee. But in the other case, where a return has been submitted by the assessee, the Sales Tax Officer would first have to satisfy himself that the return is incorrect or incomplete before he can proceed to make the best judgment assessment. The decision making process in such a case would really be in two stages, though the inquiry may be continuous and uninterrupted; the first stage would be the reaching of satisfaction by the Sales Tax Officer that the return is incorrect and incomplete and the second stage would be the making of the best judgment assessment. The first part of the proviso which requires that before taking action under sub-section (3) of section 17, the assessee should be given a reasonable opportunity of being heard would obviously apply not only at the second stage but also at the first stage of the inquiry, because the best judgment assessment, which is the a....
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....quest of cross-examination may be granted to the assessee though not universally but selectively depending upon the facts and circumstances of each case. Does this mean that the appellants in the batch of cases being disposed of now are right in their similar contentions. If this question is to be answered one has to go into the provisions relating to revision of assessment under the TNGST Act 1959. It needs to be stated in the first place that all the cases under consideration now are revisions of the first assessments and the property or otherwise of such revisions can be evaluated under the relevant provision only section 16(1)(a) reads. Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may, subject to the provisions of sub-section (2), at any time within a period of 5 years from the expiry of the year to which the tax relates determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable on such turnover after making such inquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such ....
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....pondent with an extent of purchase of Pan Parag. The Honourable Tribunal's view was that the power of re-assessment was much mere hallowed than what had been made out to be. It would be an exercise in frivolity if no sincere attempt was made to go into the heart of the matter. In this particular case, the investigators did not even make an attempt to locate the place where the originals of the C forms the investigators should be deemed to have failed miserably if they had not been on the trial of the C.Forms. The fact that this aspect had not been probed into detail alongwith other minuscular evidence such as mode of despatch, payments against purchases etc., made it appear that the assessing authority merely changed his opinion without squarely meeting the quid pro quo of the petitioner that their purchases against the controversial C' forms were of none other than the commodity already declared and individuality to the same rules therefore the revision on assessment was set aside by the Court. From the forgoing it can easily be seen, here, the case of the petitioner and the facts are entirely different. However, out petitioners have been confronted with all details of pur....
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.... giving either of the opponents a level praying filed. In the light of the foregoing, the reassessment are all sustained including the additions made and penalties levied. In the result, the appeals are dismissed. 18. Let us now consider as to how, the Tribunal has dealt with the facts and issues, 7. During argument, the learned Authorised Representative has not only reiterated the contentions raised in the grounds of appeal. But he has also filed copies of certain Tribunal orders of this Bench in his support. He has further contended thought a remand has been requested in the grounds of appeal, now it becomes very clear that the Department, is not having any other record except the extracts and the remand order will not serve any purpose. He has also filed a copy of the Special Tribunal Order in a batch case dt: 7.12.98. The facts of the case are that there were revised assessments on the basis of certain materials gathered by the Enforcement Wing in Karnataka. The grievance of the dealer was that thy had to transaction with the dealers in Karnataka and the Assessing Officer could have provided copies of relevant documents or entries in the accounts of the dea....
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....ts are already having transactions with the Karnataka dealers and when they have accounted a portion the failure to account the remaining portion is a clear case of suppression. Even in the check post, advance taxes were paid for the accounted transactions. Once the checkpost authorities have noticed the transport they use to account is and it has failed from the attention of the checkpost authority the dealer has never accounted the transaction. This is the modus operandi followed by various appellants as contended by the learned State Representative. 10. We have examined the contentions of both sides and perused the connected records. 11. In all these batch of cases, revision of assessments under Section 16 has been made by various Assessing Authorities for various dealers. Though the time bar question has been raised before the Appellate Assistant Commissioner, it was not raised before this Tribunal. We have also noticed that the revision notice has been initiated within the time prescribed under Section 16. In all the revised proceedings, it is stated that verification of record show that the dealers have not accounted certain purchases of groundnut from deale....
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....n the identical circumstances. 14. The Special Tribunal in a batch of cases ordered in O.P.Nos.2193 to 2200 etc., Dt:7.12.98 has dealt with the identical case. There is a specific direction given by the Special Tribunal that when the petitioners have denied the purchase the Department must furnish relevant records or evidence connecting them with the transactions. Though relevant details other than address of Karnataka dealer have been given is not sufficient. So the Special Tribunal has set aside the assessment with the direction to Assessing Officer furnish copies of bills or evidences or in the absence of any evidence, a cross-examination to be arranged. It is brought to tour notice even after 3 years, the Assessing Officer are not in a position to give any evidences or arranging for cross-examination. So the grievance of the learned Authorised Representative is that the direction of the Special Tribunal is not complied by the Assessing Authorities since they do not have any further records excepts the extracts. On perusal of certain records produced before us, such as letter addressed to the Additional Deputy Commercial Tax Officer, Pattukottai, II Circle, we find that....
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....ng cross examination. (1) Ordinarily, if statements recorded from third parties and documents received from third parties are taken into account and are sought to be relied upon, an opportunity must be given go the assessee to cross-examine the third party or peruse the documents sought to be relied upon, especially, then the assessee so desires an opportunity, at the earliest point of time. (2) The right of cross-examination of witnesses is not always and attribute of the principles of natural justice. It will depend upon the fats of each case. (3) If the Statement of a person is relevant for assessing the turnover of an assessee and if the said person refused to submit himself to cross-examination, it will still be open to the assessing authority to take the statement of the person into account along with other evidence, if such other evidence corroborates the statement of the third party and made an assessment in accordance with law. (4) The duty of an assessing officer to made assessment under Section 12 of the Tamil Nadu General Sales Tax Act, cannot be taken away by dubious methods of evading cross-examination and participation in an enquir....
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....from the Check Posts, they are found to be accounted. In all the transactions as per the extract, there is no single checkpost record available to prove the movement of goods from the Karnataka dealer to various appellants in these cases. 20. Finally, to sum up all our findings, it is seen that the Department is in possession of the extract sent by the Karnataka Assistant Commissioner and not more than that. The payment details if any, the transport document verification are not available. It is also seen that the dealers in Tamil Nadu are going to Karnataka State and making purchases from Marketting Committee and the agents at Karnataka are arranging the purchases. The commission agent obtains the cess receipt and produced to the dealer with his mediator invoice which mentions the description, grantity etc. We have also perused one of the mediator invoice available in the assessment file. When the purchases are effected from Marketting Committee, the invoice raised by the Marketting Committee were not made available. Based on a commission agent's account and simply because the quantity, transport, lorry number and dealer's name are mentioned, the Department cannot....