C. Manickam vs State of Tamil Nadu

The assessee is the petitioner in all the above three revisions. They relate to the assessment years 1981-1982, 1982-83 and 1983-84. The

assessee is a dealer in stainless steel articles and was originally granted exemption by granting nil assessment order u/s 12 of the Act for the

assessment years 1981-82 to 1983-84. Subsequently relying upon inspection conducted by the Intelligence Wing the assessments were revised

estimating the first sales of stainless steel articles to the tune of Rs. 4,752 for the assessment year 1982-83, Rs. 77,094 for the assessment year

1981-82 and a sum of Rs. 47,523 and Rs. 7,710 were levied as penalties.

For the assessment year 1983-84 in the course of original assessment proceedings a sum of Rs. 9,22,847 was estimated as first sales of

stainless steel articles and a sum of Rs. 90,279 was levied as penalty u/s 12(3) of the Act on the basis of the inspection conducted by the

enforcement wing. The main objections to the above proceedings for the three years by the assessee were that there was no basis known to law to

revise the assessments for the first two years, that the burden of proof of escapement of turnover for the first two years was not discharged by the

Revenue that the accounts recovered did not contain any sales or purchases, that they were cash transactions or jottings, that the names mentioned

therein did not contain the description of any stainless steel articles dealt with by the assessee, that no cross-examination of the persons whose

names were found in the entries was granted for proving that there was no sale or purchase involved in the transactions and that there was no

justification to levy penalty and that the assessment proposals for the last year 1983-84 and penalty proposals were wholly unsustainable. These

objections were rejected by the assessing officer. On appeals, the Appellate Assistant Commissioner for the first two years reduced the estimate

by 50 per cent and reduced the penalty as under :

Year Estimated first sales Penalty

1981-82 Rs. 25,698 Rs. 1,285

1982-83 Rs. 1,59,408 Rs. 7,921

1983-84 Rs. 2,63,687 Rs. 11,838

The consequential surcharge levies were also confirmed proportionately. Aggrieved, the assessee filed second appeals before the Tribunal. The

State filed enhancement petition for the year 1983-84. The Tribunal dismissed the appeals filed by the assessee as well as the enhancement petition

filed by the department. Accordingly the order passed by the Appellate Assistant Commissioner for all the three years were confirmed. Aggrieved,

the assessee is in revision before this Court in all the assessment years under consideration.

The learned counsel appearing for the assessee submitted that according to the decisions of this Court in Deputy Commissioner of Commercial

Taxes v. Subramaniam Chettiar 1977 40 STC 434, the burden of wilful escapement of turnover is on the Revenue and the said burden was not

discharged. The entries for the materials recovered did not speak about any sale or purchase or any goods dealt with by the assessee. The

assessee was deprived of their opportunity to cross-examine the persons whose names were entered in some of the entries, and there was no legal

basis to estimate and levy penalty ignoring the proper assessment granting exemption of second sales in the original assessment.

The entries themselves could not make or justify any sales and assessments under the Act. The entries containing names of persons and amount

were nothing but cash transactions. The unilateral assumption of first sales as made by the Appellate Assistant Commissioner was without any

material on record. The authorities were not justified in drawing inference that the amounts mentioned in the entries should either be sale value or

purchase value of stainless steel articles. There was no nexus shown between the amounts recorded and the business of the assessee. The Tribunal

failed to apply its mind independently. The Tribunal erred in not canceling the penalty in full. The decision in Deputy Commissioner (CT),

Coimbatore Division, Coimbatore Vs. N.C.R. Venkatesan, would not be applicable to the facts of this case. For all these reasons it was submitted

that the order passed by the Tribunal in confirming the order passed by the Appellate Assistant Commissioner are unsustainable.

On the other hand the learned Additional Government Pleader (Taxes) while supporting the order passed by the Tribunal submitted that the

assessee is a dealer in stainless steel articles and during the course of inspection the enforcement wing recovered certain account books and pocket

notebooks. From the entries made therein they came to the conclusion that the assessee has dealt with sale of stainless steel articles. The assessing

authority estimated the sale turnover on the basis of the entries found in the materials recovered on inspection. When the materials found on the

records recovered are sufficient to complete the assessment and for levy of penalty, the department need not go further and prove the genuieness

of transaction done by the assessee. The Appellate Assistant Commissioner on considering the facts arising in this case reduced the assessment as

well as the penalty to a great extent. The assessee cannot expect further deduction from the assessments and the penalty levied in these assessment

years under consideration.

We have heard the rival submissions. In the assessment year 1981-82 the assessing officer on the basis of entries available in the records during

inspection on July 2, 1983 determined the total taxable turnover at Rs. 77,094 and assessed the entire turnover to tax at 10 per cent as first sales

of stainless steel wares. On appeal the Appellate Assistant Commissioner granted relief of tax at Rs. 5,139 and relief of penalty of Rs. 6,425.

Before the Tribunal the assessee disputed the sustenance of Rs. 25,698 turnover taxable at 10 per cent and also the penalty of Rs. 1,285.

A perusal of the entries in the records secured reveals that the assessee received the goods from unknown source and disposed of them also

outside the books of account. The computation of the actual suppression was made at Rs. 51,396 by the Appellate Assistant Commissioner. The

Appellate Assistant Commissioner also granted relief towards estimated second sales applying the principle laid down by this Court in the case of

Gomathiammal reported in [1984] 55 STC 210. Therefore, there is an addition of Rs. 25,698 taxable at 10 per cent. Since the Appellate

Assistant Commissioner estimated the first sale and granted relief it may not be said that the turnover assessed by the Appellate Assistant

Commissioner and the Tribunal is without any basis.

The assessee also disputed the levy of penalty of Rs. 1,285. According to the assessee suppressions have been assumed with reference to the

entries in the records secured and hence no penalty u/s 16(2) of the Act is possible. The assessee also relied upon the principles reported in 1976

38 STC 458 Mad [App.] (Mehaboob and Company v. Government of Madras), Thvl. Kathiresan Yarn Stores, Salem Vs. The State of Tamil

Nadu, and The State of Tamil Nadu Vs. Thangadurai, Accordingly, the asssessee pleaded for the total cancellation of the penalty. The assessment

was made on the basis of the records secured. Considering the submissions made by the assessee, the Appellate Assistant Commissioner has

reduced the turnover as well as the penalty. The sales suppressions are confirmed, with reference to first sales. Only 50 per cent of the turnover

has been sustained by the Appellate Assistant Commissioner and the Appellate Tribunal. The Tribunal also pointed out that the decisions relied on

by the assessee are not applicable to the facts of this case. The case on record would go to show that the Appellate Assistant Commissioner has

already taken a lenient view and reduced both the taxable turnover and the penalty. Since there is suppression of sale penalty is warranted. The

assessee has got no materials to say that there was no suppression at all. Under such circumstances we confirm the order passed by the Tribunal in

respect of both quantum appeal and the penalty ordered.

8-A. In the assessment year 1982-83, the assessee disputed before the Tribunal the sustenance of assessment at 10 per cent on a turnover of Rs.

1,59,408 and levying penalty at Rs. 79,21. Accordingly, the Tribunal dismissed the assessee''s appeal. The arguments advanced by the learned

counsel appearing for the assessee in this assessment year are similar to the arguments advanced in the revision relating to the assessment year

1981-82. On considering the submission made by the assessee, the Appellate Assistant Commissioner sustained the turnover to an extent of 50

per cent. The Appellate Assistant Commissioner also reduced the penalty to a considerable extent. Since there was suppression in sales and in the

absence of any materials from the file of the assessee to controvert the case put forward by the department we are unable to interfere with the

order passed by the Tribunal in the assessment year 1982-83 in both the quantum appeal as well as in the penalty. Accordingly the order passed

by the Tribunal in the assessment year 1982-83 in the matter of both quantum appeal and penalty stand confirmed.

In the assessment year 1983-84 the assessee disputed before the Tribunal the sustenance of assessment at 10 per cent on a turnover of Rs.

2,63,687 and the penalty of Rs. 11,838. Following the reasons given by the Tribunal in the appeal relating to the assessment year 1981-82, in this

assessment year also the Tribunal confirmed the order passed by the Appellate Assistant Commissioner.

The department filed an enhancement petition for restoration of an addition of Rs. 6,59,160 involving a tax of Rs. 65,788 ordered as relief in

the appellate order of the Appellate Assistant Commissioner and also for enhancement of penalty by Rs. 78,441.

The department submitted that the slips and the pocket note recovered would reveal that there was suppression of sales and also purchase of

stainless steel sheets. According to the department while suppression was proved the Appellate Assistant Commissioner was not correct in

reducing the turnover and the penalty leviable. According to the Appellate Assistant Commissioner a perusal of the records reveals that the actual

suppression relates to the period from the accounting year to the date of inspection on November 30, 1983. No evidence of further suppressions

have been mentioned by the assessing officer in his order. Hence the presumption of further suppression is without sufficient evidence. The actual

suppression comprised of possible cash transactions. There is also evidence of local purchase from dealers. There is also evidence of actual

manufacture, the sale of which had been estimated. Therefore, the Appellate Assistant Commissioner reduced the taxable turnover at 50 per cent.

The assessing officer levied penalty of Rs. 90,279 u/s 12(3) of the Act on the actual suppression of Rs. 6,28,786. The Appellate Assistant

Commissioner considerably reduced the taxable turnover. The entire suppression was brought to light only after an inspection made by the

department. Therefore, when there is actual suppression of penalty is exigible, u/s 12(3) of the Act. In view of the circumstances in which

suppressions have been sustained the penalty was fixed at Rs. 11,838 which is equal to 50 per cent of the tax due on the actual suppression

assessed. The assessee has not produced any materials to ignore the reasons given by the Appellate Assistant Commissioner or determining the

taxable turnover and for reducing the penalty. In 1986 63 STC 86 in the case of 1Deputy Commissioner (CT) v. Venkatesan, this Court held as

under :

That the mere fact that the assessee had not maintained accounts at all cannot be taken advantage of by the assessee to get away from the

clutches of section 12(3) of the Tamil Nadu General Sales Tax Act, 1959. Even if the assessee is entitled to exemption, he has to maintain

accounts and submit a return disclosing the turnover but claiming exemption under the notification as in the event of his claim for exemption being

negatived, his purchases and sales will have to be scrutinised for the purpose of assessment. The Tribunal in the instant case having, for the purpose

of confirming the assessment, given a finding that but for the surprise inspection the turnover covered by the seized documents would not have

come to light, was not justified in its view that for purposes of penalty there was no suppression and ought to have sustained the penalty at least to

the extent of the sales suppression.

In 1984 55 STC 210 in the case of State of Tamil Nadu v. Gomathiammal this Court has held as follows :

That in view of the fact that the assessee was only a dealer and not a manufacturer of steel furniture and that it was not shown that the assessee

had purchased the goods in question from outside the State, it had to be presumed that the assessee had purchased the goods for sale only in the

State. In the circumstances of the case the assessee could be taken to have purchased the goods representing 50 per cent of the escaped turnover

from local registered dealers and therefore to that extent the sales should be taken to be second sales. Hence the Appellate Assistant

Commissioner and the Tribunal were justified in adopting the ratio of 50 : 50.

Considering the reasons given by the Appellate Tribunal, we are of the opinion that the findings given by the Appellate Tribunal in confirming

the orders passed by the Appellate Assistant Commissioner, both in the matter of quantum appeal as well as in the penalty are in order. In the

result, the revisions are dismissed. No costs.

Petitions dismissed.