2015 (3) TMI 37 - HC - VAT and Sales Tax

Whether, on the facts and circumstances of the case, and in the true and correct interpretation of Explanation I to subsection (2) of Section 36 of the Bombay Sales Tax Act, 1959, the Tribunal was justified in holding that the onus lies on the revenue to establish, for invoking the said ExplanationI, that there was gross or willful neglect on the part of the assessee - Held that - The basic burden about concealment of the transactions or inaccurate furnishing of particulars of the transaction is on the Revenue and in case in the assessment it is found that the tax paid by the assessee is less than 80% of the tax assessed, the presumption with regard to failure to disclose such transaction of sale or purchase would arise. In the present case indisputably the books of accounts had been submitted have been accepted and not objected to at all. There is no evidence on record to show that the assessee in fact had failed to disclose any transaction of sale and purchase neither it was pointed out before the first Appellate Authority or for that matter before the second Appellate Authority. - What emerges is that the books of accounts had been submitted had not been objected to and were accepted. It further comes on record that there was debit balance in the Companies account as on 31.12.1990 to the tune of ₹ 427.22 Lakhs showing that the company had been not faring well financially and had been incurring heavy losses resulting in erosion of capital. Thus it appears that the lesser payment of taxes is not attributable to a neglect by the company or for that matter a willful one at that. Thus, the observations appearing in the judgment of the Tribunal can hardly be said to hold that the onus lies on the Revenue to establish in the facts and circumstances of the present case wherein the books of accounts which have been submitted have been accepted and not objected to and further that the assessee had been facing the financial difficulties and was considered to be a sick industry. In such an indisputable position the question No.1 as has been framed as a matter of fact appears to have been erroneously framed as it does not appear to be the purport of the Tribunal s judgment to hold that the onus in the circumstances of the case lies on revenue and the narration was with respect to the circumstances. The second question has to be answered in the affirmative for it emerges that the Indoswe (1995 (2) TMI 417 - BOMBAY HIGH COURT) judgment by the Division Bench of this Court gives an exposition on the scheme with regard to imposition of penalty under Section 36(2)(c) with reference to the explanations (I) and (II). On perusal of judgment and the facts and circumstances of the case involved in Indoswe case (supra) it cannot be said that it dealt with only explanation II as has been sought to be urged on behalf of the Revenue. - Tribunal is justified in deleting the penalty imposed on assessee under Section 36(2)(c) read with explanation I of the Bombay Sales Tax Act, 1959. - Decided against Revenue.

Summary

Issues Involved:
1. Onus of proof under Explanation I to subsection (2) of Section 36 of the Bombay Sales Tax Act, 1959.
2. Justification of penalty deletion under Section 36(2)(c) read with Explanation I of the Bombay Sales Tax Act, 1959.

Issue-wise Detailed Analysis:

1. Onus of Proof under Explanation I to Subsection (2) of Section 36 of the Bombay Sales Tax Act, 1959:
The primary issue was whether the Tribunal was justified in holding that the onus lies on the revenue to establish gross or willful neglect on the part of the assessee to invoke Explanation I. The Tribunal, referencing the case of Indoswe Engineers (P) Ltd., concluded that the presumptions under Explanation I are rebuttable. The Tribunal found that the assessee had submitted and accepted books of accounts without discrepancies, indicating no concealment of transactions. The Tribunal held that the basic burden of proving concealment or inaccurate particulars of transactions lies with the Revenue, and if the tax paid is less than 80% of the assessed tax, the presumption of failure to disclose arises. However, the Tribunal noted that the assessee's financial difficulties and the acceptance of their books of accounts rebutted this presumption.

2. Justification of Penalty Deletion under Section 36(2)(c) Read with Explanation I:
The second issue was whether the Tribunal was correct in deleting the penalty under Section 36(2)(c) read with Explanation I, considering the Bombay High Court decision in Indoswe Engineers (P) Ltd. The Tribunal deleted the penalty, noting that the assessee had complied with the production of books of accounts, which were accepted without discrepancies. The Tribunal referenced the Indoswe Engineers case, which elaborated that the onus of proof under Section 36(2)(c) lies with the Revenue and that the presumptions under Explanation I are rebuttable. The Tribunal found that the lesser payment of taxes was not due to neglect or willful default but due to the assessee's financial difficulties and status as a sick industry. The Tribunal concluded that the penalty under Section 36(2)(c) could not be sustained as the assessee had successfully rebutted the presumption of concealment.

Conclusion:
The Tribunal's judgment was upheld, affirming that the onus of proof under Explanation I lies with the Revenue and that the penalty under Section 36(2)(c) was correctly deleted. The Tribunal's reliance on the Indoswe Engineers case was appropriate, and the assessee's financial difficulties and compliance with account submissions were significant factors in rebutting the presumption of concealment. The reference was answered accordingly, and the Tribunal was justified in deleting the imposed penalty. The parties were directed to bear their own costs.