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TMI Blog2014 (5) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Case (Revision) was admitted on the following substantial questions of law:- "1. Whether in the facts and circumstances of the case, the order of the Tribunal in having refixed the taxable turnover in respect of Tvl. Anusha Leather Pvt.Ltd at Rs.5 lakhs is legally correct while the said concern was proved to be non-existent and therefore, the suppression found out for Rs.10 lakhs had to be upheld? 2. Whether the Tribunal has legally erred in having set aside the suppression for Rs.25 lakhs found out in respect of Tvl. Bajaj Garments Limited in view of several discrepancies? 3. Whether the order of the Tribunal in not having restored the penalty as levied by the assessing officer is legally sustainable?" 2. It is seen from the narrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Assistant Commissioner pointed out that the case of the assessee was that the goods were despatched to Anusha Leathers Private Limited and not to Anusha International Limited. Considering the fact the goods were sent to Anusha Leathers Private Limited but, enquiries was made only with regard to Anusha International Limited, the assessment of Rs.10 lakhs at the hands of the assessee could not be sustained. On appeal by the Revenue, the Tribunal pointed out that Anusha Leathers was closed in the year 1994 itself and the land and the building of Anusha Leathers was purchased by Anusha International Limited during 1994. In the circumstances, the Tribunal held that it was not correct on the part of the assessee to contend that it had ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of this turnover also. 4. The Tribunal pointed out to the delivery challan 001/96-97 dated 24.3.1997 of Abu Exports and delivery challan 890/26.4.97 evidencing the despatch of goods by Balaji Garments to the assessee and held that the assessee's contention could not be doubted on the sole ground that the return of goods was not having check post seal to indicate its movement through Ranipet checkpost. In the absence of any such proof, the conclusion was that goods had not passed through at all. On a perusal of the records, the Tribunal held that the Revenue had not convincingly proved about the movement of goods from Chennai and there are no grounds to doubt the genuineness of the delivery challan. So too the entry in the inward regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anusha Leathers. Thus, it restricted the turnover to Rs.5 lakhs for the year 1995-96 and Rs.5 lakhs for the year 1996-97. As regards the restricted turnover to 50% of Rs.10 lakhs, except for the fact in respect of non existence of Anusha Leathers, the Revenue had not proved or seized any material regarding the disposal of the stock. Given the fact that the said turnover was the closing stock as on 31.3.1996 and the assessee had not in any manner pleaded that the sale should have been restricted to 50% for the year 1996-97 and the balance for the year 1995-96, we do not find any justifiable ground to accept the view of the Tribunal distributing the turnover between 1995-96 and 1996-97. On the admitted case of the assesee that the closing st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition. In the background of the above facts and the assessee not having shown the receipt of the goods and the manner in which it had dealt with the goods, we feel that there is every justification for including this turnover for the purpose of assessment. 8. As regards levy of penalty, the order of the Assessing Officer gives no reason for imposition of penalty indicating any intention on the part of the assessee to suppress the fact. The fact that the explanation offered by the assessee was disbelieved and rejected, per se would not lead to imposition of penalty. Taking note of the circumstances, under which the assessment had been made, the fact that there are also defects in the enquiry done by the Revenue, we do not find that this i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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