TaxTMI 
TaxTMI 
2024 (9) TMI 1765
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.... the goods dealt by them and it was also noticed by the Enforcement Officer that there was a stock variation. Petitioner had also, by a sworn statement, admitted that they have not maintained the stock register, bills and stock variation. Since the petitioner had declared the total turnover of Rs.35,02,441/- and total taxable turnover of Rs.26,57,325/- respectively in the returns filed for the year 2002- 2003 and as stock variations were noticed during the inspection and there was a suppression, the Assessing Officer proceeded to determine the total taxable turnover to the best of his judgement and by an order dated 14.07.2004 assessed a total taxable turnover of Rs.44,27,542/- and Rs.35,82,426/- as against the reported turnover filed by the assessee. The Assessing Officer had assessed the suppression of turnover at Rs.6,16,734/- and had made an addition towards the probable suppression at 50% of the actual suppression for Rs.3,08,367/- and an aggregate turnover of Rs.9,25,101/- was taxed on the assessee. Besides a penalty of Rs.45, 695/- was imposed under Section 12(3)(b) of the Tamil Nadu General Sales Tax Act,1959. 3. Petitioner had claimed before the Assessing Officer that t....
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....Officer was directed to re-quantify based on the orders passed thereon. 5. The Revenue had preferred appeal before the Sales Tax Appellate Tribunal. The Tribunal by an order dated 03.03.2008 allowed the appeal by placing reliance on the decision of this Hon'ble Court in the case of Yousuf Radio Vs. Board of Revenue, Commercial Taxes, Chepauk, Madras 5 reported in 43 SCC 525, wherein it is observed that the Assessee cannot approbate and reprobate and once a voluntary act results in a sworn statement, it should be given effect to and the opportunity should not be given to the Assessee to retract therefrom, unless there is some suspicion and circumstances available. Assailing the orders passed by the Tribunal, the Assessee has preferred the above Writ Petition. 6. Mr.V.Parthiban, the learned counsel appearing for the petitioner contended that, when the petitioner was able to substantiate by filing cancellation of the registration certificate, the assessment made upon the closing stock and the ledger entries in respect of the Sister concern of the petitioner Tvl Trisul Dyes and Chemicals including the assessment order thereon, the Assessment Officer ought to have looked into ....
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....fterthought has brought in the claim of the stock transfer from the sister concern that too by way of interpolation of records as rightly noticed by the Tribunal. 11. The learned Government Advocate by placing reliance on the decision of this Hon'ble Court in the case Yousuf Radio Vs. Board of Revenue, Commercial Taxes, Chepauk, Madras 5 reported in (1979) 43 STC 525, contended that the Assessee cannot approbate and reprobate and contended that the Tribunal had rightly taken not of this legal position and had set aside the order of the Appellate Authority restoring the Assessment Order which is perfectly justified and needs no interference and sought for dismissal of the Writ petition. 12. Heard the rival submissions and perused the materials available on record. 13. The petitioner Assessee, who is a registered dealer in Dyes and Chemicals had declared a total taxable turnover of Rs.35,02,441/- and Rs. 26,57,325/- respectively in the returns for the year 2002 and 2003. In the returns, they had claimed exemption as 2 nd sales of Dyes and Chemicals which was found admissible. However, the place of business was inspected by the Enforcement Wing on 22.10.2002 and also on 2....
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....x Officer, R.G.Street Assessment Circle. It is their claim that there was a closing stock of dyes and chemical valued at Rs. Rs.7,08,253/- with the Tvl Trisul Dyes and Chemicals as on 31.03.2001 and since the registration was cancelled from 01.04.2001, the Assessing Officer had determined the corresponding taxable turnover of dyes at Rs.7,79,978/- by adding 10% towards freight and gross profit upon the closing stock value of dyes as on 31.03.2001 and turn over was taxed at 8% single point in Assessment Proceedings dated 27.05.2002 and only out of this closing stock of tax suffered dyes available with Tvl Trisul Dyes and Chemicals and the same was carried over to the petitioner's concern and as such there was a stock transfer of dyes to the value of Rs.5,80,000/- as on 01.04.2002. 17. The Assessing Officer had not accepted the claim made by the Assessee since he found that, when the petitioner has not come up with such a claim during the time of inspection and having voluntarily admitted the stock variation and given a sworn statement, cannot as an afterthought reprobate and retract from the statement only to escape from the assessment by introducing a new stand. However, the....
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....dgement. 21. It is only the subsequent claim of the Assessee that in respect of the business carried on by the sister concern in the name of Tvl Trisul Dyes and Chemicals, for which separate registration certificate was taken and the registration was cancelled there was a stock available as on 31.03.2001. As rightly observed by the Assessing Officer, the Assessee could have offered that explanation during the time of inspection, but however having admitted the discrepancies and having no plausible explanation available at the time of inspection, the Assessee only as an afterthought had introduced new claim that the stock already taxed at the hands of Tvl Trisul Dyes and Chemicals due to their closure was available and there was a stock transfer to the tune of Rs.5,80,000/- to the petitioner's concern. 22. The assessee once having voluntarily given sworn statement in respect of the discrepancies as he had no explanation, later he cannot be allowed to approbate and reprobate only to escape from the Assessment made against them. In fact, in the instant case, even though the petitioner had claimed availability of stock and submitted records in respect of Tvl Trisul Dyes and C....
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....ed that at the time when the sworn statement was made by him, he was compelled or coerced to make it. On the other hand, he wanted to escape the fangs of the Income-tax Act by suitably retracting from his sworn statement and stating that they were cash credits and not the total of unbilled cash sales. Obviously, it suited him to do so before the income-tax authorities. Having had the advantage, which we are not sure whether he did have, the retraction of the sworn statement is pressed into service before uf as was attempted before the Appellate Assistant Commissioner. An assessee cannot reprobate and approbate. If that could be done and if it is possible in law, then every assessee can escape at every possible inconvenient stage from the force of the taxing provisions because he could make suitable statements at opportune moments to help his cause and get out of the net of taxation. Once a voluntary overt act results in a sworn statement, it Should be given effect to and an opportunity ought not to be given to the assessee to retract therefrom unless there is some suspicion, proved and circumstantial, available at the time when such a statement was made. No such significant circums....
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