2018 (10) TMI 881

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.... a registered dealer engaged in the sale and purchase of Pan Masala, Gutkha etc. An inspection is said to have been conducted at the premises of the revisionist on 6.1.2015, wherein, document nos. 4, 5, 6, 7, 8, 9, 10, 14, 15, 16, 17, 18 and 19 relating to the concerned year have been found, which related to sale of Pan Masala, Gutkha etc. and had not been reflected in the books of account of the assessee. The assessee has taken a defence before the authorities that these transactions/ records do not relate to the revisionist inasmuch as all such materials relates to independent hawkers who usually kept their records in the premises of the revisionist during night. Affidavits of these hawkers have also been filed before the Tribunal. The Tr....

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....ate, whether directly or otherwise; and includes a selling agent who makes sale of such new commodity on behalf of the person who has manufactured it." Section 16 of the Act would also be relevant as it provides for the burden of proof and is extracted here in after:- "16. Burden of proof In any assessment proceedings where any fact is specially within the knowledge of the assessee, the burden of proving that fact shall lie upon him, and in particular, the burden of proving the existence of the circumstances bringing the case within any of the exemptions, exceptions or reliefs under any provisions of this Act including claim of any amount as input tax credit, shall lie upon him and assessing authority shall presume the absence of such....

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....premises of the revisionist unless these transactions relates to the assessee itself. Admittedly, most of these documents relates to months prior to the date of inspection. The reasoning assigned by the Tribunal that unless these records relates to the revisionist, there would be no justification for maintaining such records of sales by hawkers cannot be said to be perverse or erroneous. Had these documents related to independent hawkers, it could at best, would be of current period and there would be no reason why old records would be maintained in the office of the assessee. The reasoning assigned by the Tribunal, in that regard, is clearly supported by materials on record. Just because a different view can be taken, would not be a groun....

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....ntly clear that except for survey conducted on November 28, 1987, no other material whatsoever has been referred or relied upon by the authorities for enhancing the turnover of the assessee in respect of Assessment Years 1948-85, 1985-86 and 1986-87." So far as the first ground urged on behalf of the revisionist is concerned, it is admitted that liability to pay tax would not be dependent upon the date of registration of assessee so far as sale of goods are concerned. If it is found, as a matter of fact, that the assessee was engaged in sales of Pan Masala and Gutkha, prior to registration also, the liability of paying tax could be imposed upon it. So far as observation of this Court in Honey Furnitures (supra) is concerned, the facts of t....