9911796707
TMI Blog1987 (6) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... nd loose papers connected with sales of such ghee, during the period from 10th September, 1968 to 2nd November, 1968 and he also found that the entries contained in those papers were not found recorded in the regular books of accounts. The assessing authority recorded the statement of Shri Gyarsi Lal, a partner of the assessee-firm on the spot and seized the book of accounts under section 22(3) of the Act. Thereafter, the assessing authority carried out further proceedings and in those proceedings the assessing authority found that sales to the extent of Rs. 2,84,756 had been evaded from tax. The said amount included the turnover of Rs. 70,000 for sale of pure ghee during the months of September and October, 1968; sale of 988 tins of ghee valued at Rs. 1,84,756 to Ramdas and sales of Rs. 30,000 which were not recorded in the regular books for the last six months. The assessing authority passed an assessment order dated 22nd March, 1969 wherein he increased the sale turnover of the assessee by Rs. 2,84,756 and imposed sales tax on the additional amount of turnover and also imposed a penalty of Rs. 16,000 under section 16(1)(i) and a penalty of Rs. 250 under section 16(1)(n) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances of the case, the turnover of Rs. 70,000 fixed on the basis of loose papers found in the business place of the dealer was not evaded sale and it related to the individual transaction of a partner of the firm and not of the firm M/s. Hari Narain Gyarsi Lal? (ii) Whether, on the facts and circumstances of the case, the evaded turnover of Rs. 1,84,756 on account of sale of 988 tins of related to empty tins made by Ramdas, notwithstanding to deposition by him before the two authorities below and also non-production of khata related to the transaction of Shri Ramdas as well as no entry thereof in exhibit I? (iii) Whether, on the facts and circumstances of the case, the evaded turnover of Rs. 30,000 based on consideration of previous sales in khatas carried out during the assessment period but not submitted before the assessing authority set aside notwithstanding no mention thereof in the order of Board? (iv) Whether, on the facts and circumstances of the case, the penalty of Rs. 16,000 under section 16(1)(i) was rightly set aside?" By order dated 11th January, 1980, the Board of Revenue referred the following question for the opinion of this Court: "Whether, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner in this revision. In this connection Shri Bapna has submitted that by virtue of section 15 as amended, and the transitory provisions contained in section 13(11) of the Amendment Act, the reference has to be treated as a revision and must be decided accordingly and that under section 15(3), as substituted by the Amendment Act, this Court is competent to formulate the question of law or to allow any other question to be raised. Shri Singhal, on the other hand, has urged that it is not permissible for the petitioner to agitate questions in respect of which reference was refused by the Board of Revenue by order dated 11th January, 1980 because a remedy was available to the petitioner under section 15(2) of the Act, as it stood at the relevant time, to move this Court to seek a reference in respect of questions which the Board of Revenue had refused to refer and since the petitioner failed to take any steps in this regard, the order of the Board of Revenue dated 11th January, 1980 refusing to refer the other three questions, has become final and the same cannot be reopened and the questions for which reference was refused, cannot be permitted to be agitated by the petitioner at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be stated that the Board of Revenue expressed the view that findings that were recorded by the Board of Revenue in respect of the said matters were findings of fact and were conclusive and they do not require any further discussion. If the petitioner felt aggrieved by the aforesaid order of the Board of Revenue dated 11th January, 1980 in so far as the Board of Revenue refused to refer the other three questions mentioned in the reference application for the opinion of this Court, the petitioner could have moved an application before this Court in subsection (2) of section 15 of the Act seeking a direction from this Court for referring the said questions mentioned in the reference application which the Board of Revenue had refused to refer to this Court. The petitioner, however, did not take any such step within the time prescribed for moving such application and as a result the order of the Board of Revenue dated 11th January, 1980 refusing to refer the said three questions mentioned in the reference application filed by the petitioner has become final. The amended provisions of section 15 introduced by the Amendment Act have been made applicable to the references pending before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue has held that the onus to prove the sales which escaped tax lay on the department and that in the present case the sale of ghee which is alleged to have been contained in 988 tins should have been proved by the assessing authority and that the assessment order clearly shows that this onus has not been discharged properly. The Chairman of the Board of Revenue has observed that he had recorded the statement of Shri Ramdas, and Ramdas was cross-examined by the counsel for the petitioner. After considering the statement of Shri Ramdas, the Chairman of the Board of Revenue has recorded the finding that the said statement clearly indicates that no purchases were made by Ramdas from the assessee and he has denied that the entries relates to any sale to him. This would show that a finding of fact has been recorded by the Chairman of the Board of Revenue on the basis of evidence on record which finding has been affirmed by the Division Bench of the Board of Revenue in special appeal. There is no legal infirmity in the said finding. Similarly with regard to question No. (iii) relating to the evaded turnover of Rs. 30,000 based on consideration of previous sales in khatas carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent and his principal shall both be jointly and severally liable to pay the tax on such sales. The liability that has been imposed on a commission agent under section 9-B of the Act is co-extensive with that on the principal, and the commission agent is only liable to the extent the principal can be held liable for the payment of tax under the Act. If the principal is exempt from payment of tax then no liability can be imposed on the commission agent under section 9-B of the Act. In the present case the admitted position is that the turnover of Rs. 70,000 related to the sale of ghee belonging to the agriculturists and the assessee sold the same as a commission agent. Since the said turnover of Rs. 70,000 related to various transactions, the liability of the assessee for tax under section 9-B could have arised only if the principal was assessable to tax under the Act and the turnover of each or any of the principal exceeded the turnover of Rs. 30,000 and then only the liability of the assessee in respect of excess part of the turnover could have arisen under section 9-B of the Act. There was no material before the assessing authority on the basis of which it could be said that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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