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2011 (6) TMI 714 - HC - VAT and Sales TaxWhether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining the assessment merely based on the freight receipt alone is correct in law? Whether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining further addition when there was no material evidence for such addition as the inspection was conducted only on September 3, 1994? Whether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining the penalty when there was no evidence to establish that there was a concluded contract of sale which was suppressed by the petitioner is correct in law? Held that:- The addition made on actual suppression is confirmed. Further, the assessing officer also made equal amount of probable omission and suppression of ₹ 60,189. It is only probable omission and there is no concrete evidence available to make this addition and also there is no material available except on the basis that there is probable omission and suppression. Therefore, in the absence of evidence, addition cannot be made and the Tribunal is wrong in confirming equal amount of probable omission. Therefore, addition of a sum of ₹ 60,189 made on the basis of the equal amount of probable omission and suppression is deleted and consequently, the penalty levied on the same turnover is also deleted. We also confirm the actual suppression made and delete the equal amount of probable omission and corresponding penalty on the turnover is also deleted and the revision in T.C. (R) No. 940 of 2006 is allowed in part The authorities have correctly made the actual suppression and also made equal amount for probable omission and the assessee has not filed any document to prove the purchases then accounted for. In such circumstances, the authorities below have correctly made addition and equal addition and also correctly levied penalty, which is based on valid materials and evidence and we do not find any illegality or irregularity in the order passed by the Tribunal for the assessment year 1994-95. In these circumstances, we answer the questions in favour of the Revenue and against the assessee and the revision in T.C. (R) No. 989 of 2006 is dismissed
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