TMI Blog2018 (2) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... lty to the extent of amount of stock difference of ₹ 7,50,000/- which was found by Income Tax authorities during survey proceedings and disclosure made before the Income Tax authorities? Whether the Hon’ble Tribunal has erred in law and in facts in confirming order of the first appellate authority and deleting levy of tax, interest and penalty to the extent of stock difference of ₹ 7,50,000/- which was found by the Income Tax authorities during survey proceedings and disclosure made before the Income Tax authorities and thereby rejecting cross objection of the appellant herein? Held that: - the assessing authority had relied only on the statement made before the Income Tax authorities and had not taken into consideration the fact that the Income Tax authorities had not taken into consideration the stock lying at the exhibition place as well as the fact that the books of accounts were closed and adjusted and audited by a Chartered Accountant and the investigation report of the department had given a clean chit to the appellant. It is in this backdrop that the Tribunal found no justification in confirming the order of the first appellate authority and set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal has erred in law and in facts in deleting levy of interest u/s 30(5) of the Gujarat Value Added Tax Act in respect of tax paid on turnover related to marketing scheme; ( 2) Whether the Hon ble Tribunal has erred in law and in facts in reversing the order of the first appellate authority and deleting levy of tax, interest and penalty to the extent of amount of stock difference of ₹ 7,50,000/- which was found by Income Tax authorities during survey proceedings and disclosure made before the Income Tax authorities; ( 3) Whether the Hon ble Tribunal has erred in law and in facts in confirming order of the first appellate authority and deleting levy of tax, interest and penalty to the extent of stock difference of ₹ 7,50,000/- which was found by the Income Tax authorities during survey proceedings and disclosure made before the Income Tax authorities and thereby rejecting cross objection of the appellant herein; 6. Insofar as proposed question (1) is concerned, the facts as emerging from the record are that the respondent-dealer during the year 2012-13 implemented a marketing scheme wherein it registered 200 members who were required to pay ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in stock illegally, and on the basis of such illegal calculation had compelled the respondent to make disclosure of unaccounted income of ₹ 15,00,000/-. It was the case of the respondent that the assessing authority by placing reliance upon the assessee s statement before the Income Tax authorities had confirmed the tax liability of ₹ 15,00,000/-. In appeal, the first appellate authority had reduced the tax liability to 50% thereof at ₹ 7,50,000/-. The assessee carried the matter in appeal before the Tribunal to the extent the tax liability of ₹ 7,50,000/- was confirmed, whereas the appellant State of Gujarat filed cross objection challenging the deletion of 50% of the tax liability, as confirmed by the assessing authority. Before the Tribunal, the respondent dealer succeeded, whereas the cross objections of the State came to be rejected. 8. Mr. Hardik Vora, learned Assistant Government Pleader, assailed the impugned order passed by the Tribunal by placing reliance upon the findings recorded by the assessing authority in the assessment order. It was submitted that insofar as the sale of appliances to the twenty four persons who participated in the schem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the respondentdealer had raised sale invoices for the actual amounts received by him from his customers and had disclosed them in the periodical returns filed by him, as required under sub-section (1) of section 29 of the Act within the time limit prescribed there under, along with a receipt showing full payment of tax payable on such turnover. The turnover shown in the returns was not disputed by the authorities. It is in this backdrop that the Tribunal found that there was full compliance with the provisions of sub-section (2) of section 30 of the Act and, therefore, sub-section (5) thereof was not attracted. In view of the fact that the respondent dealer had furnished returns as required under sub-section (1) of section 29 of the Act and had paid into the Government treasury the whole of the amount due from him according to such return and had duly complied with the provisions of sub-section (2) of section 30, no infirmity can be found in the impugned order passed by the Tribunal in holding that the provisions of sub-section (5) of section 30 would not be attracted. The first question, therefore, does not merit acceptance. 12. As regards the proposed questions (2) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xhibition place as well as the fact that the books of accounts were closed and adjusted and audited by a Chartered Accountant and the investigation report of the department had given a clean chit to the appellant. It is in this backdrop that the Tribunal found no justification in confirming the order of the first appellate authority and set aside the same and for the very same reason, dismissed the cross objections filed by the appellant. 14. In the opinion of this court, the findings recorded by the Income Tax authorities during the course of search, could have been made a starting point for inquiry as regards the discrepancy in the physical stock and that shown in the stock register. However, the statement made by the dealer, ipso facto, could not have been the basis of an addition. Acting upon the findings recorded by the Income Tax authorities, the authorities under the Value Added Tax Act were required to make an independent examination into the facts before making the assessment. As noted hereinabove, the Commercial Tax Department had also searched the premises of the dealer and no discrepancies could be found in stock and the investigation report of the department had giv ..... 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