TMI Blog2013 (5) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... there is clear-cut confessional statement of partner of the respondent-firm admitting about the excess stock of the goods; (iv) two witnesses were also present at the time of survey and in their presence physical stock was taken and the value of excess goods was admitted by the respondent; and (v) even before the DC (A) neither the bills, builty, vouchers nor books of accounts were produced and there is a categorical finding of the DC (A) that there is no violation of rule 50. It is very relevant here to observe that while order of imposing the penalty was passed on January 19, 2004, the appeal was decided on March 22, 2007 therefore, during the intervening period of almost about three years, no action whatsoever was taken by the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing officer that despite ample opportunities having been provided to the assessee, he could not produce the books of accounts and supporting material. In one corner of the business premises, the survey team found some tins and packed material in cartons. Enquiry was made about the said goods, and the assessee was asked to produce copy of the bills/builties and also the other supporting material as also books of accounts but during the course of survey, neither the books nor the bills and vouchers as stated above, were produced by the respondent-assessee. The assessing officer, granted time to the assessee to produce the bills/vouchers and other material in support of his defence and also issued notice to show cause for January 27, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so claimed that the respondent was pressurised to surrender the same and also furnished an affidavit before the DC (A) however, the learned DC (A) was not satisfied with the explanation offered by the respondent-assessee and dearly observed in the appellate order that there is no violation of rule 50 as it has been duly signed and sealed by two witnesses and valuation was also admitted having been done in the presence of partner and two witnesses. The learned DC (A) also observed that even before him, the DC (A), neither bills, builty and vouchers nor even the books of accounts were produced and further that the respondent had admitted and there is clear confession of mistake committed by the respondent-assessee with regards to unaccounted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -firm, physical verification of excess goods was taken and the partner of the respondent-firm agreed with the value of the unaccounted goods worked out by the survey team in the presence of two independent witnesses. She further submitted that adequate opportunity was given to the respondent by giving further date for producing relevant documents and the books of accounts and despite time granted to him, the respondent voluntarily chose by moving an application in writing admitting the fact about unaccounted stock and for imposition of penalty on the spot. She further submitted that under some apprehension that something more would be found therefore, the respondent agreed for imposition of penalty on the value of goods worked out in his pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quate opportunity having been granted not only at the time of survey but thereafter neither bills, builty, vouchers and books of accounts and other supporting documents relating to excess goods were produced ; (iii) there is clear-cut confessional statement of partner of the respondent-firm admitting about the excess stock of the goods; (iv) two witnesses were also present at the time of survey and in their presence physical stock was taken and the value of excess goods was admitted by the respondent; and (v) even before the DC (A) neither the bills, builty, vouchers nor books of accounts were produced and there is a categorical finding of the DC (A) that there is no violation of rule 50. When there is clear-cut finding of the assessing off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing an affidavit before learned DC (A) much later on point of time. It is very relevant here to observe that while order of imposing the penalty was passed on January 19, 2004, the appeal was decided on March 22, 2007 therefore, during the intervening period of almost about three years, no action whatsoever was taken by the respondent about pressurizing tactics/coercion by the assessing officer, during the course of survey and filing an affidavit is merely for the sake of filing of an affidavit. I have gone through the judgment relied upon by the learned counsel for the respondent and find that the facts of the said case are totally distinguishable to the facts and circumstances of the present case. In view of the above discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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