TMI Blog2019 (9) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be since he was unable or not in a position to determine the same from the proposal (the word 'proposed' in the reply appears to be an error of language). No reply was received as a result that the officer passed the impugned orders, adverse to the assessee. It is trite to state that an assessment should be made based on materials available and after proper and independent application of mind by the Assessing Officer. In the present case, the intention of the Assessing Officer to conclude the assessment based on the objection dated 25.07.2014 appears very clear from his proposal for deviation not once, but twice. Inspite of the same, the insistence of the authorities to confirm the proposals of the Enforcement Wing is clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rison of the profit and loss account and the monthly returns filed by the petitioner and penalty in terms of Section 27 of the Act was also proposed. 5.In reply, dated 25.07.2014, the proprietor of the petitioner concern brought to the notice of the Assessing Authority that on a reconciliation of the profit and loss account with the monthly returns, the differences that arose were only ₹ 429/- for the period 2010-11, ₹ 21,140/- for the period 2011-12 and ₹ 13/- for the period 2012-13. Thus, the report of the Inspecting Authority and the conclusions arrived at therefrom were contested, as being factually inaccurate. Consequently, the addition proposed towards the probable sales was also con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with the Joint Commissioner, his superior, pointing out his inclination to deviate from the Enforcement Wing proposals. His request reads as follows: 'Sub: TNVAT Act 2006 O/o the Assistant Commissioner (CT) Theni 1 - Tvl.Ganesh Sanitary Wares Surprise inspection proposal certain details requested Regarding. Ref: D3 proposal for Tvl.Ganesh Sanitary Wares. ****** I submit that the place of business in respect of Tvl.Ganesh Sanitary wares was inspected by the Enforcement wing officials on 25.07.2013 and the proposal was received in the officer on 30.04.2016. Regarding the proposal I request the Joint Commissioner (Enf) to clarify that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Besides making estimation towards actual suppression you have proposed to levy an equal addition towards probable omission. We submit that in the absence of proof of continuity of suppression, no addition could be made and the same is not sustainable. We rely on Madras High Court decision reported in 57 STC 212, 103 STC 543, Sankar Oil Mills (TC (R) No.2377/08, dated 08.07.10), 28 VST 199 (Commercial Cloth Manufacturing) and 42 VST 166 (SRS Industries), which is binding on you. Hence to make an equal addition is unlawful and unjustified. 3.In the notice, we have also proposed to levy penalty under Section 27 of the TNVAT Act (Sub-Section not mentioned for invoking the penal provision). In the absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessment should be made based on materials available and after proper and independent application of mind by the Assessing Officer. In the present case, the intention of the Assessing Officer to conclude the assessment based on the objection dated 25.07.2014 appears very clear from his proposal for deviation not once, but twice. Inspite of the same, the insistence of the authorities to confirm the proposals of the Enforcement Wing is clearly contrary to law as well as to the mandate of several Circulars issued by the Principal Commissioner of Commercial Taxes to the effect that an assessment has to be passed on an independent appreciation of the material facts by the Assessing Authority. I have no doubt, in this case, that had the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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