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TMI Blog2009 (10) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... eight per cent and penalty of Rs. 41,27,634 was levied. Challenging the order of the revision made by the Commercial Tax Officer, the assessee preferred an appeal before the Appellate Assistant Commissioner. During the pendency of the appeal, the first respondent has filed the documents such as advance licence, letter given by the SAIL, export invoices, bill of lading, certificate issued by the foreign sellers and clearing agents, sale invoices, lorry receipts and labour bills, etc. Based upon the above said documents and on a consideration of the materials available on record the Appellate Assistant Commissioner has allowed the appeal in C.S.T. No. 58 of 1998 on July 27, 1998 by exercising the power under section 31 of the Tamil Nadu General Sales Tax Act, 1959. Challenging the said order, the Department filed appeal before the second respondent herein. The second respondent in turn in and by its order dated March 15, 1999 in S.T.A. No. 41 of 1998 dismissed the appeal and hence challenging the abovesaid order, the present writ petition has been filed. The learned Special Government Pleader (Tax) submitted that the order passed by the second respondent confirming the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inasmuch as the said documents have been found to be genuine and considered by the second respondent the petitioner cannot seek to set aside the order impugned only on the ground that the second respondent ought not to have considered the documents filed during the pendency of the first appeal. Further a reading of the impugned order would show that the first respondent has considered the entire facts involved in the case and gave a factual finding that the first respondent was maintaining to complete dayto-day stock account and there was no attribution of stock discrepancy or irregularity in the account. Therefore the learned counsel prays for the dismissal of the writ petition. The question to be considered in the present writ petition is as to whether the impugned order passed by the second respondent is liable to be set aside on the ground that the second respondent has considered the documents which ought not to have been taken into consideration in law or not. In order to appreciate the issue involved in the writ petition, the provisions contained in section 39B will have to be looked into. Section 39B of the Tamil Nadu General Sales Tax Act, 1959 is extracted hereunder: "3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment Pleader that the admission of the documents by the Appellate Assistant Commissioner is contrary to section 39B cannot be countenanced. Moreover even assuming that section 39B is applicable to the present case on hand a reading of the said section would clearly show that there is no total prohibition for admitting the documents but the conditions specified therein will have to be specified. The Department herein has not made any objection when the documents were filed by the first respondent before the Appellate Assistant Commissioner. Therefore, we are of the opinion that having not objected to the said filing of the documents it is not open to the petitioner to hereof contend that the said documents ought not to have been admitted. The contention of the learned Special Government Pleader cannot be accepted for yet another reason since under the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959 power is given to the second respondent to permit a party to produce fresh evidence. A reading of the said provision would show that the second respondent may require any document to be produced for the purpose of enabling the second respondent to pass orders. In the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hten his contention, the assessee sought the help of the suppliers of the stock to Manohara Wines, viz., Ajantha Wines, and produced the bill of Manohara Wines to further establish his case that the disputed turnover had already suffered tax in the first instance. The Tribunal thought that, in the interests of justice, an opportunity should be given to the assessee to prove/establish that his contention is corroborated by the evidence, which was no doubt sought to be placed before the Tribunal for elucidation. What is relied upon, in a wooden fashion, by the learned Additional Government Pleader is that sub-section (2) of section 39B can only apply to events and proceedings which take place before the Appellate Assistant Commissioner and that it should not be read as part of or intended to be part of sub-section (3) of section 39B. It is here that we said that the argument is wooden. If the Legislature has given a privilege to an assessee as also a right to the assessing officer to reciprocally establish as between themselves the correctness of the contention and the decision which they have to make respectively in a matter relating to taxation, then it will be anomalous to hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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