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TMI Blog2016 (10) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... the necessary purchase bill, challan, builty or/and other material and on the contrary it was found that the said items were not recorded in the books of account. Accordingly the officer prepared a stock statement. A show-cause notice u/s 77(8) of the RST Act, 1994 was issued for hearing on 8.3.2001, however, the respondent assessee filed written reply on the spot contending, inter alia, that the hearing be concluded then and there and he was not interested to appear on 8.3.2001 and taking into consideration the above factum of not availing an opportunity to provide the material on a later date, the Assessing Officer passed an order on 2.3.2001 holding that the assessee has failed to justify accounting of the said goods being not supported with bills and vouchers or not having been recorded in the books of account, were kept with the intention of evasion of tax and accordingly imposed penalty of Rs. 1,30,500/-. 3. The matter was assailed before the Dy. Commissioner (Appeals) before whom the assessee sought to place purchase bill, voucher, builty and other material, so also contended that the said goods are recorded in the books of account and since there was pressure/coercion, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehemently contended that the order of Tax Board is just and reasonable and is not required to be interfered with and contended that the assessee had no option except to come to the terms of the officer conducting survey and despite the goods duly accounted for, the assessee was forced to give statements to accept that the stock of 90 cartons was unaccounted. Learned counsel contended that the goods were received a day earlier and at-least sufficient time was available to the assessee to make relevant entries and drew attention of the court to contend that the challan, builty of Prince Carrying Corporation, purchase bill, all support the contention of the assessee. He also contended that the freight was also paid to Prince Carrying Corporation on 1.3.2001 i.e. the day when the goods were received. Learned counsel also contended that there is a violation of Rule 50 inasmuch as the statements were recorded but there were no independent witnesses and if recorded in their presence, their names and addresses were not mentioned and, therefore, the mandate of Rule 50 was not fulfilled. Learned counsel also relied on Parle Beverages Pvt. Ltd. v. Collector of Central Excise, Bombay 1998 (9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 3000 per line. He also stated that he has already made the payment of the said purchase but he does not have any receipt of the same because these goods were received by bus on various dates and he does not have even the receipt of fare of the bus. He further stated that he has purchased the goods from Delhi without bill and challan and with the intention of evasion of tax, and that is why it is not recorded in the books of account. 11. A show cause notice was issued to the assessee u/s 77(8) on 2.3.2001 for hearing on 8.3.2001 and in pursuance thereto a handwritten letter was given to the AO contending that he is unable to produce the bill, voucher and that he accepts the charge/guilt and that it is unrecorded/undisclosed in the books of account and an order may be passed on the spot and he is prepared to pay whatever penalty is leviable. 12. Proceeding-sheet was also drawn by the AO on 2.3.2001 initially on the basis of unrecorded stock found and thereafter again another proceeding-sheet was drawn on 2.3.2001 after the letter was written by the assessee wherein the fact was recorded by the AO that the assessee has filed a reply on the spot accepting the charge/guilt and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are sufficient to dislodge the bills/vouchers namely that the assessee claims that the goods were received through Prince Carrying Corporation and was received by it on 1.3.2001, but even by the close of 1.3.2001 no entry was found recorded in the books of account, whereas the assessee had himself stated that he had purchased the same from Delhi and the goods came by bus. The assessee had also stated that he had already made payment of the same to the Delhi concern, but the cash book produced by the assessee clearly shows that though the purchase is said to be made on 28.2.2001 but no payment was made even upto 31.3.2001 and if ledger account is to be seen of UJ Zippers (Pvt.) Limited in the books of assessee, it transpires that the first payment appears to have been made on 21.6.2001 of Rs. 1 lac, another payment of Rs. 1 lac on 17.7.2001 and one more payment of Rs. 1 lac on 26.12.2001 and even after the close of the next accounting year i.e. 31.3.2002, still an amount of Rs. 90,874 appear to be outstanding. 17. It may also be observed that though on the spot last sale bill was found of 27.2.2001 and also last purchase bill which was found recorded in the books of account was 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments were not signed by the Manager as also owner of the firm, whereas in the instant case admittedly the statements are duly signed and sealed by the owner and there are two independent witnesses and in the presence of independent witnesses stock taking has been conducted and the procedure under Rule 50 was duly taken care and followed by the AO. 21.3 The judgment in the case of ACTO v. Kishori Shyam Brijesh Kumar (supra) is also distinguishable inasmuch as the court though found that once there is an admission, further enquiry may not be necessary, and this observation supports the contention of the Revenue taking into consideration the judgment of the apex court in Shri Krishan v. Kurukshetra University [AIR 1976 SC 376], but in the said case the court found that without examining the books of account or registers there was no satisfactory finding, therefore, the court deleted the penalty, whereas insofar as the findings in the instant case are concerned, there is a clear cut finding by the AO rejecting the contention of respondent based on the material itself found and no books of account were produced on the spot except stating that they were generated on computer, and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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