TMI Blog2010 (3) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... We do not think it is a fit case to consider the question raised by the State whether rule 38(5) will apply retrospectively because in this case having regard to the modified additions sustained by us we do not want to disturb the finding of the Tribunal on purchase tax assessment. We direct the assessing officer to follow the Tribunal's order on this issue with the modification of the turnover as fixed above. Tax Revision case filed by the assessee is dismissed and tax revision case filed by the State is partly allowed - 7,12 of 2009 - - - Dated:- 29-3-2010 - RAMACHANDRAN NAIR C.N. AND GOPINATHAN P.S. , JJ. The judgment of the court was delivered by C.N. RAMACHANDRAN NAIR J. Connected revision cases, one filed by the State a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso to be noted that receipt of unaccounted sale proceeds through bank account was also detected and even though the assessee tried to explain that credit in the bank represented amount received from his daughter and son in the middle-east, he could not prove the same. In other words, it is proved beyond doubt that the assessee was engaged not only in quantum of suppression but also in undervaluation as well. Rejection of books of account and estimation of turnover were confirmed in first appeal. However, the first appellate authority refixed the suppression at four times the stock variation in quantity and directed to apply the value for 50 per cent of the quantity at the rate estimated by the assessing officer and for the balance quant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch amount under sub-section (1) no further penal or prosecution proceedings shall be taken against such person, in respect of that offence. According to the counsel for the assessee, prior to amendment, section 74(2) prohibited assessment also on estimation basis based on compounding done. His further contention is that it is only after the amendment, further action, which is prohibited under section 74(2) after compounding, was limited to penal and prosecution proceedings. In other words, until amendment to section 74(2) the abovesaid sub-section prohibited even any addition in assessment based on compounding. The Government Pleader on the other hand contended that section 74(2) does not speak about assessment and speaks about penal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted for assessment is concerned, we feel the value fixed for the purpose of compounding at Rs. 7 per kg. or Rs. 10 per kg. for cashew kernel is not binding on the assessing officer. In this case, the assessing officer found that the assessee's own records show that the average sale price for sales made to one Bombay party was Rs. 59.62. In fact, Cashew Development Corporation has confirmed to the Department that the average market price during the year was ranging from Rs. 46 to Rs. 115. Even though counsel for the assessee contended that the said communication was issued in 2007, we do not think the date furnished can be ignored particularly when the same is corroborated with actual sale figures of the assessee's sales to Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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