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2019 (8) TMI 584

..... As the Tribunal is interdicting the order in Ext.P6 on the ground of violative of principles of natural justice, the Appellate Tribunal did not consider any other point on which the parties are at issue with each other in Tax Appeal. Therefore, as a necessary consequence the Tribunal has rightly restored to file the proceedings of re-assessment initiated through Ext.P2 and Ext.P4 notices. The Tribunal has made it clear that the petitioner if fails to produce the records as directed by the Tribunal within the time limit of two months the original assessment order will stand restored. There is no dispute on the assessee/petitioner producing the record. Ext.R2(a) calls upon the petitioner to produce books of accounts. The assessee, in fact, did not produce the record. Therefore, the consequence of omission to produce books of accounts, by referring to the emphatic conclusion, it can be concluded that Ext.P6 assessment order is restored so far as assessment year 2008-09 is concerned. The Tribunal has restored Ext.P6 order and it is not within the competence of the second respondent to ignore Ext.P6 order and independently pass order of re-assessment in Ext.P13. In the considered view o .....

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..... espondent issued Ext.P4 notice dated 10.11.2010 revising the turnover as ₹ 26,63,96,995/- and called for reply from petitioner. The petitioner in Ext.P5 filed objections to Ext.P4 notice. The second respondent in Ext.P6 order of assessment held as follows: Along with the reply the assessee produced the books of accounts for my verification for the year 2008-09. On verification of the books of accounts the following amount on account of purchase have been seen duly accounted against the unaccounted purchase notified in the notice read as 3rd. 04/08 ₹ 10,92,306.00 05/08 ₹ 15,02,522.00 06/08 ₹ 19,96,117.00 07/08 ₹ 24,99,587.00 08/08 ₹ 29,47,306.00 09/08 ₹ 16,79,856.00 10/08 ₹ 11,54,028.00 11/08 ₹ 7,57,481.00 12/08 ₹ 10,06,600.00 01/09 ₹ 1,56,488.00 02/09 ₹ 6,62,632.00 03/09 ₹ 4,66,089.00 Total ₹ 1,59,21,012.00 The above purchase has been proved and hence eligible for deduction from the unaccounted purchases proposed in the notice. Hence the actual suppressed purchase has been arrived hereunder: Total purchase suppression proposed ₹ 270,82,600.00 Less Purchase proved ₹ 159,21,012.00 Balance .....

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..... t sales inspite of the request made to the assessing authority. The assessing authority has not considered the request of the appellant and there is violation of natural justice in this case. Therefore, we are of the view that the matter requires to be considered again by the assessing authority. We, therefore, set aside the orders of the authorities below and remit the case back to the assessing authority for fresh disposal. The appellant is directed to produce all the books of accounts, purchase and export details before the assessing authority within two months from the date of receipt of this order. The assessing authority shall verify the books of accounts and other details like purchases and exports and allow the appellant's claim as per law. We make it clear that if the appellant fails to produce the records as directed by us above within the time limit of two months, the original assessment order will stand restored. (emphasis applied) 3. It is evident from Ext.P13 assessment order that the petitioner did not avail the opportunity provided by the order of Appellate Tribunal in Ext.P7 and produce the records at any time much less within the time granted by Appellate Trib .....

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..... d i.e., not affording fair opportunity to petitioner, set aside Ext.P6 order in Ext.P7 order dated 13.11.2013. The order of remand offers opportunity to petitioner to submit the books of accounts and thereafter a fresh order could be passed. The order of remand deals with a consequence of restoration of order in Ext.P6, if the petitioner fails to avail the opportunity provided by the Appellate Tribunal. The petitioner, it is stated, though was justified by a few circumstances beyond his control for not producing the books before second respondent, the learned counsel fairly states that it turned out to be a blessing in guise. The fact that the petitioner committed default in producing the books or did not avail the opportunity would only restore the order in Ext.P6 and the second respondent does not have jurisdiction to issue notice in Ext.R2(a) and make re-assessment under Section 25(1) of the Act. According to his argument, by operation of consequence to the non-production of accounts by petitioner Ext.P6 is revived and continues to be binding between the parties as the binding effect is derived from adjudication by the Appellate Tribunal in Ext.P7 dated 13.11.2013. Therefore, th .....

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..... n Ext.P6 was set aside. As the Tribunal is interdicting the order in Ext.P6 on the ground of violative of principles of natural justice, the Appellate Tribunal did not consider any other point on which the parties are at issue with each other in Tax Appeal. Therefore, as a necessary consequence the Tribunal has rightly restored to file the proceedings of re-assessment initiated through Ext.P2 and Ext.P4 notices. The Tribunal apprehending inordinate delay on the part of petitioner assessee in producing the books before second respondent has also provided for the consequence of such omission if committed by the petitioner/assessee. The Tribunal has made it clear that the petitioner if fails to produce the records as directed by the Tribunal within the time limit of two months the original assessment order will stand restored. There is no dispute on the assessee/petitioner producing the record. Ext.R2(a) calls upon the petitioner to produce books of accounts. The assessee, in fact, did not produce the record. Therefore, the consequence of omission to produce books of accounts, by referring to the emphatic conclusion, it can be concluded that Ext.P6 assessment order is restored so far .....

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