TaxTMI 
TaxTMI 
2021 (3) TMI 289
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....2004-2005 the petitioner had filed his returns under the TST and CST Acts. During the period under consideration, the petitioner had transported cement bags to railway wagons and claimed that in the transportation, a portion of his cement was totally damaged which the petitioner either had to throw away or sell at extremely low rates. The Assessing Officer did not accept this version of the petitioner in its entirety and, therefore, issued notice for assessment of his returns for the said assessment periods in terms of Section 9 of the TST Act. Before the Assessing officer, the petitioner appeared and produced accounts and documents including a delivery certificates issued from time to time by the railway authorities which suggest that portion of his cement was damaged in transit. For example, if one peruses a certificate at page 43 to the petition, it would show that it is a certificate dated 21st May, 2005 issued by the railway authority conveying that 4665 cement bags were received for transportation and these bags were delivered at the destination point of which 502 begs of cement had become stony (i.e. hardened). [3] The Assessing Officer did not seriously dispute the petitio....
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....e sale amount of 29717 bags of cement as hard stone so claimed by the dealer will be taken in the account at the time of arriving at the value of 29717 bags of cement. However, in absence of any contrary evidence I accept of the return turnover in respect of 4% tax. ...................." [4] He thereupon proceeded to assess the payable tax by making following further observations : " ......... From the records in possession the total quantity of cement imported against Form XVIII & XVIII A in terms of Matric Ton (M.T.) being converted into bags by dividing 20 to total Matric Ton (M.T.) reveals the difference in question as under : Year Office record Dealer's record Difference in bags 2001-02 1299537 bags 1299457 bags 80 bags (office record higher) 2002-03 1442886 bags 1489639 bags 46753 bags (dealer's record higher) 2003-04 995032bags 994882 bags 150 bags (office record higher) 2004-05 1290534 bags 1243781 bags 46753 bags (office record higher) Sri Ranjit Kr. Saha, authorized representative is hereby given an opportunity as to why such differences arrive out of maintenance of books of accounts. But he did not give any satisfactory reply i....
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....sued by the Railway Authority. Accordingly, on the previous date of hearing on 10.12.2015, the petitioner was directed to submit technical proof that 29717 bags of cement were actually damaged but the petitioner failed to submit any such proof. In absence of any conclusive proof, the claim for damage of 29717 bags cement cannot be considered. Regarding the second point of agitation regarding excess quantity of 46753 bags of cement, the petitioner was asked to submit the relevant stock transfer notes, utilized permits and "F' forms but the petitioner failed to submit any of the required documents." 5. However, the petitioner was allowed one opportunity to produce evidence before the Assessing Authority that the excess quantity of 46753 bags of cement were actually received during 2005-06 and due taxes were also paid. 6. Therefore, the cases are remanded to the Superintendent of Taxes, Charge - II, Agartala for making re-assessment on the second point of agitation. The reassessment should be completed by 15th March, 2016 after giving the dealer reasonable opportunity of being heard. 7. With the above observations, the cases are disposed off. Inform all concerned accordingly."....
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....how that the Commissioner had interfered with the operation of the order of assessment, nevertheless allowing the Assessing Officer to pass a fresh order. The penalty was based on total additions and not only on a portion of the addition which the Commissioner maintained. The entire penalty would, therefore, fall. What further order the Assessing Officer has passed after the Commissioner's revisional order is not known to us. In any case, the penalty which was in relation to the entire additions made by the Assessing Officer, cannot survive when part of the addition is not done by the Commissioner. Second reason is that the Assessing Officer did not give adequate opportunity to the petitioner to meet with the proposal of penalty. Section 13(2) of the TST Act provides that no penalty under sub-section (1) would be imposed unless the dealer has been heard or has been given a reasonable opportunity of being heard. The impugned order passed by the Assessing Officer shows that he orally conveyed to the Accountant of the petitioner that he proposes to impose penalty and recorded that at the suggestion of the Accountant, he kept the further hearing of the case in the second session when ....