TMI Blog2018 (12) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee herein had taken a specific contention with respect to the miscellaneous income being income generated from real estate business; which could be easily proved by production of documents. The assessee having failed to so prove the transactions which geerated the income, with documents and materials available with the assessee, the Assessing Officer was perfectly justified in drawing an adverse inference - decided in favor of Revenue. Addition made on Gross Profit - Held that:- The books of accounts shows the amounts as miscellaneous income. The income if derived from the dealership, would definitely include gross profit. The addition made of gross profit, to the income disclosed, is not sustainable - decided in favor of Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales Tax. 2. On remand, before the Assessing Officer, the assessee took a contention that the income was derived from Real Estate business by sale of properties. The Assessing Officer hence directed the assessee to produce the documents to evidence such transactions. The assessee failed to produce the documents in which circumstance the assessing officer reiterated the earlier addition. In first appeal the gross profit addition was deleted and what was sustained was the addition made to the turnover of the miscellaneous income. The State filed an appeal from the deletion of gross profit and the assessee filed a cross objection against the addition of miscellaneous income as taxable turn over, sustained by the First Appellate Authority. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior Government Pleader would submit that the additions have to be sustained both with respect to miscellaneous income detected in the books of accounts as also the gross profit added. He relies specifically on Section 12 of the KGST Act to contend that the burden to prove that the transaction was not taxable under the sales tax enactment was squarely upon the assessee, which the assessee failed to discharge. The income having been disclosed in the books of accounts, it was incumbent upon the assessee to show the source of such income, failing which it was perfectly within the authority of the Assessing Officer to proceed for assessment on best of judgment and make addition of the income as taxable turn over of the dealer. 5. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer refused to accept the contention and made an addition to the taxable turn over. The learned Judges drew a distinction, in the approach to be taken for imposing liability to income-tax in respect of unexplained acquisition of money; which may not hold good in sales tax cases. For the purpose of levy of sales tax, it would be necessary to show not only that the source of money has not been explained but also the existence of some material to indicate that the acquisition of money by the assessee has resulted from transactions liable to sales tax and not from other sources. P . C . Ittymathew's case (supra) considered the scope of interference in revision and set aside the order of the High Court, which interfered wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs . CTT [2007(4) SCC 480] . We have to test the facts arising in this case with the law laid down by the Honourable Supreme Court. 9. At the first stage the Tribunal had remanded the case specifically directing the Assessing Officer to conduct an enquiry as to whether the income is derived from transactions which attract sales tax. True, the Assessing Officer had not attempted to make such an enquiry; we would presume, more on account of the specific contention taken by the assessee that the income was derived from real estate business. We see from the order of the Assessing Officer, the First Appellate Authority as also that of the Tribunal that this was the specific contention taken up by the assessee before the Assessing Officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it is for the revenue to establish that a particular receipt is income liable to tax . . . . . . . . . . . . . . . . . We may point out, as some argument was advanced on the question of burden of proof, that this Court did not lay down that the burden to establish that an income was taxable was on the Revenue was immutable in the sense that it never shifted to the assessee . The expression in the first instance clearly indicates that it did not say so . When sufficient evidence, either direct or circumstantial, in respect of its contention was disclosed by the Revenue, adverse inference could be drawn against the assessee if he failed to put before the Department material which was in his exclusive possession ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
