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2022 (3) TMI 931 - ORISSA HIGH COURTClassification of goods - rate of tax - sale of huggies - taxable @12% or not - claim of deduction of the trade discount - failure to discharge burden to prove - enhancement of turnover by ten times - allowing tax adjustment paid at the check gate in respect of tricycle, freezer, pushcart and stablizer - HELD THAT:- It is seen that despite opportunities, the Assessee could not produce evidence to explain the branch transfer in respect of that container. It is seen that the AO has enhanced the turnover by 10 times by treating this as ‘fraud’. The Court is of the view that enhancement by 10 times may be disproportionate and, therefore, modifies the impugned assessment order, as affirmed by the ACST and the Tribunal, from 10 times to 5 times the turnover. The Court is unable to agree with the above submissions of the Assessee. Although the RC of the Assessee incorporates ‘ice cream’ which the Assessee deals in, it does not contain the above 4 items viz., tricycle, freezer, pushcart and stabilizer. While this may be incidental to the selling of ice cream, unless these items are specifically incorporated in the RC, the 3rd proviso to Rule 36 will not stand attracted. Consequently, the Court is unable to agree with the submission of the Assessee and upholds the findings of the AO as affirmed by the Tribunal. The revision petition is disposed of.
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