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TMI Blog2018 (4) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as, restricting the penalty from 150% to 50%. 4. Aggrieved against the same, the state filed appeal in A.Nos.600 and 688 of 1996 before the Tamil Nadu Sales Tax Appellate Tribunal(Additional Bench), Chennai. Vide common order dated 11.03.1997, the same were dismissed. Revenue-II has filed Enhancement Petition Nos.704 of 1995 and 1995, before the Appellate Assistant Commissioner (CT) - II, Madras, relating to the assessment years 1991-92 and 1992-93 respectively. 5. Being aggrieved by the abovesaid order, the State has filed instant Tax Case Revision on the following grounds that, the Tribunal erred in allowing the appeal on the ground that incriminating records recovered from the residence of one of the partners pertain to the transactions in jewellery and it is not proved by the department that the partner himself did such business. 6. Mr.V.Hari Babu, learned Additional Government Pleader (Taxes), submitted that the Tribunal has failed to note that under the existing provisions of the Act, the dealers who registered himself for doing business in notified commodities is not prohibited from doing business in other commodities also. Hence, the presumption that the respondent d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppropriate here to cite the case of Tvl.Nanak Glass works (1979) TC 961 TK 320 (Up) wherein it was laid down that the records having been recovered from the appellant's place it is for them to explain the transactions and the entries therein would have to be taken as those relating to the assessee. 11. Having regard to the facts I cannot take a stand dissimilar to what has been taken by the Enforcement Wing Officers and assessing officer as there is a case against the appellant in the light of the records. The actual suppression as found from the slips is, therefore, sustained in both the appeals. However, with regard to appeal No.704/95, there is a calculation mistake as could be seen from page 177 of the assmt. file. It relates to slip No.21 and Sl.No.2 the value for 1608.650 gms. at the rate of Rs. 300/- per gram was taken as Rs. 4,85,595/- whereas it actually works out to Rs. 4,82,595/-. Thus there is a total error of Rs. 3,000/-. The actual turnover works out to Rs. 1003215/- and not Rs. 1006215/- as shown by the assessing authority. This turnover is therefore, modified as discussed above. 12. With regard to the estimated suppression it needs to be taken note of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys that there was no stock of goods during inspection. 15. Considering the nature of suppression highlighted and the various facts and circumstances of the case and the fact that the recovery of records was from the residence of the partner and not from the business premises, I hold the view that equal addition for probable omission in both the appeals. 16. The nest point of dispute relates to the levy of penalty. I feel that levy of penalty of 150% of the tax due on the actual suppression would not be fair for the reason that the recovered records were obtained only from the residence of one of the partners and not from the business premises and that the appellant had not been dealers in gold and silver articles and on the contrary, they had dealings only in electrical goos and also for the reason that the recovered records showed transaction hitherto unconnected with business activity of the appellant and so the circumstances involved are not as aggregating as to invite maximum penalty both the cases. 17. The matter of levy of penalty has been lucidly dealt with in a number of cases. To being with, the cse law reported in (1978) 42 STC 121 (Mad) in the case of Kadiresan Yar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re aggravating circumstances with regard to the suppression of turnover that the sales tax authorities would be justified in levying the maximum penalty. Considering the facts and circumstances of the case and the judgments in this behalf I am of the opinion that the circumstances involved in the present case do not call for the maximum levy of penalty. On the contrary penalty of 50% of the tax due on the suppressed turnover would be enough to fulfill the ends of justice. The assessing authority is therefore directed to reduce the refix the penalty accordingly at 50% of the tax due on the actual suppressions confirmed. 20. In the result, both the appeals are modified." 11. Contentions of the rival parties and the decision of the Appellate Tribunal in A.No.600 of 1996 and Tribunal Miscellaneous Petition No.835 of 1996 and Tribunal Appeal No.688 of 1996 and Tribunal Miscellaneous Petition No.22 of 1997, dated 11.03.1997, are extracted hereunder:- "3. Thiru.S.Jothiramalingam, Additional State Representative, appearing on behalf of the Revenue Submitted and argued that when the Appellate Assistant Commissioner sustained the actual turnover, he should have also sustained the actu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The lowers authorities held that the records were recorded at the time of search of the residence of one Thiru.Prabahar Rao who is the partner of the above concern. They also held that it is the duty of the appellants to explain the details of these records. It is also not disputed that the appellants denied the transactions even at the time of assessment proceedings. As we have detailed above, these slips contain the name of the seller and leading dealers in jewellery. When the appellants denied even at the time of assessment proceedings it is the duty of the assessing officer to examine those dealers as found in the slips. By way of examination, they could have ascertain some details regarding the ownership of the slips and details as the transactions. Further the slips also contain the transactions with Lakshmi Vilas Bank, Chennai. The account number is also noted in the in the slip. The assessing officer would have verified these bank's transactions and come to the conclusion whether these slips relate to the appellants or not. 7. It is accepted that the appellants are not manufacturers of Jewelleries. The appellants did not also deal in silver jewellery articles. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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