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TMI Blog2016 (10) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the third parties, whose records were relied upon with the accounts of the dealer and grant sufficient time to file objections on receipt of the records sought for and opportunity in the matter. 4. The respondent, however, did not accede to the request made by the petitioner, but completed the assessment by passing the impugned order dated 31.3.2005 and confirmed the proposal in the pre-revision notice. This order of assessment has been challenged in this writ petition. 5. Mr.T.Pramod Kumar Chopda, learned counsel for the petitioner submitted that the impugned order having been passed without providing a reasonable opportunity, in spite of a specific request, is against the principles of natural justice and fair play. According to the learned counsel, the respondent ought to have furnished copies of the records relied upon and provided an opportunity of cross examination with reference to the accounts of the registered dealers before disallowing the claim of exemption. It is further submitted that when the third parties' statements and accounts are relied upon for assessment, unless the petitioner is given the copies of the statements and records with an opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced on the decision of the Hon'ble Supreme Court in the case of Kalra Glue Factory Vs. Sales Tax Tribunal [reported in (1987) 66 STC 292]. 10. On the above grounds, the learned counsel for the petitioner would submit that the impugned order is unsustainable and as the same has been passed in violation of the principles of natural justice, the petitioner need not be driven to avail the alternate remedy. To support such a contention, reliance was placed on the decision of the Hon'ble Supreme Court in the case of State of H.P. Vs. Gujarat Ambuja Cement Ltd. [reported in (2005) 142 STC 1]. 11. On the merits of the claim made by the petitioner, it is submitted that in the light of the various decisions of this Court, the petitioner's claim for second sale exemption under the Act could not have been denied. In this regard, a reference was made to the decisions of the Hon'ble Division Bench of this Court in the cases of (i) Govindan & Co. Vs. State of Tamil Nadu [reported in (1975) 35 STC 50], as confirmed by the decision of the Hon'ble Supreme Court in the case of State of Tamil Nadu Vs. Govindan & Co. [reported in (1994) 93 STC 185]; (ii) Deputy C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the petitioner's claim for second sale exemption under the Act. It was also submitted that when the seller - Mr.Mahendrakumar Jain himself had unequivocally declared that he acted as a bill trader by issuing sale bills without actually doing the transactions, there is no error in the order passed by the respondent. 16. According to the learned Additional Government Pleader, the main contention of the petitioner is that the said Mr.Mahendrakumar Jain has not been produced for cross examination and that the petitioner was not given such an opportunity. In this regard, it was submitted by the learned Additional Government Pleader that similar case involving Mr.Mahendrakumar Jain came up for consideration before this Court in W.P.Nos.27576 and 27577 of 2006, which were disposed of by a common order dated 1.11.2007 by directing the petitioner therein to avail the alternate remedy and the writ appeals filed against the said order were also dismissed by the Hon'ble Division Bench. 17. It was further pointed out by the learned Additional Government Pleader that the common order in W.P.Nos.27576 and 27577 of 2006 was passed by referring to an earlier of the Hon'ble Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent, the proposal for disallowance of claim for exemption was confined only to the value of the purchases made by the assessees/dealers from the three companies only and no other disallowance/ additions were made and however, in the case of the petitioner, the respondent proposed to disallow the entire claim for exemption for the second sale made by them. It was stated in the interim objections that the respondent was not justified on facts and law. The petitioner also sought an opportunity for cross examination after the records were furnished to cross examine the concerned persons of the three companies. 23. It was also stated in the interim objections that at the time of inspection, records were verified and they revealed that all the purchases made by the petitioner were from local registered dealers either on payment of tax or tax suffered except inter-State purchases, which were sold as first sale and tax was paid. It was further stated that the details furnished in the Annexure would show that the tax paid purchase is about Rs. 37.23 crores and the balance tax suffered purchase from various existing registered dealers as on date on the file of the Department. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no necessity to give copies of statements as required by the dealer, which contain other secret facts of the Department and perhaps to that of the other dealers and that the Act does not compel the Assessing Officers to provide for the documents for cross examination and they are required only to give a reasonable opportunity. 28. The extract of the statements and other records have been clearly set out in the pre-revision notice, which is found to be enough. Thus, the respondent concluded that the petitioner has indulged themselves in bill trading purchase menace and that the Department has every reason to doubt other transactions and accordingly confirmed the proposal. 29. The first issue to be considered is as to whether the respondent was justified in completing the assessment without affording an opportunity sought for by the petitioner. 30. It is not in dispute that the cause for issuing the pre-revision notice is the statements recorded from third parties and records collected from them. When such is the situation, the petitioner was fully justified in seeking an opportunity to peruse those documents and also cross examine the persons, who have given those stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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