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TMI Blog2019 (12) TMI 1168X X X X Extracts X X X X X X X X Extracts X X X X ..... oice No.46 dated 05.02.1996 and both the Invoices were of the same identical amount of Rs. 6,44,118/-. The third sale under Invoice No.3 dated 29.06.1996 took place in the next year, Academic Year 1996-97, for which a proforma invoice for the same amount of Rs. 6,44,118/-, was issued in current year, Academic Year 1995-96, but during the course of survey conducted at the business place of the Assessee in the statements (Slip No.4) recorded by the Assessing Authority, the said third sale was shown as Proforma Invoice amounting Rs. 6,44,118/-, but final Invoice No.3, dated 29.06.1996 only was issued upon the actual sale of third Doubling machine taking place. 3.The Assessing Authority as well as the Appellate Authorities below treated the amount of the said Proforma Invoice to the extent of Rs. 6,44,118/- as the suppressed taxable turnover in the hands of the Assessee for the year 1995-96 itself and imposed the tax and penalty in question on the Assessee. 4.The relevant observations of the three authorities below are quoted below for ready reference. (i) Assessment Order dated 15.12.1998: "As the dealers have deliberately evaded the turnover for 95-96. Penalty under Section 9(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on 10.11.98. In their letter dated 20.11.98, the appellants had claimed that it was only a proforma invoice given to enable the purchaser to arrange for payment for supply/bank loan. It takes 2 to 6 weeks to complete the sale process. Even after nearly 2 1/2 years they have not given the sale bill details. Before me they contended that they had raised bill number 3/29.6.96 for Rs. 5,21,277/-. This is rather strange. At the time of filing reply on 20.11.98, they have not mentioned about raising of sale bill on 29.6.96. They had not produced this sale invoice copy and convinced the Assessing Authority about the genuine of the transactions. They have not produced the copy of the sale invoice, the Sales Journal, the correspondence for changing the size and mass, the details of reduction of excise duty etc. before me also. In view of the above I am not inclined to accept their contention of raising sale invoice during 1996-97 since it is not supported by any evidence whatsoever. Moreover a verification of the entries in slip Number 4 reveals that there is a credit of Rs. 25,00,000/- to the account of Anand Cotspin Ltd. The two invoices raised are debited to their account and they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customer had not taken certain accessories and hence there is small difference between the proforma invoice and the final invoice. 13.The vital point to be noted is that the entire issue is revolved around the alleged proforma invoice issued for Rs. 6,44,188/-, which the appellants failed to produce for perusal and necessary verification. Secondly, in their objection letter dt.20.11.98, to the proposal of the Assessing Officer, the appellants had claimed that it was only a proforma invoice given to enable the purchasers to arrange for payment, bank loan. But after lapse of 2-1/2 years, at the time of hearing of the first appeal, they contended that they had raised bill no.3 dt.29.6.96 for Rs. 5,21,277/- in respect of the proforma invoice. If it were true, the above fact could have been brought to the notice of the Assessing Officer when they filed their objections before the Assessing Authority on 20.11.98. The learned Appellate Assistant Commissioner has also rightly observed that they have not produced the copy of the sale invoice, proforma invoice, sales journal, correspondence for change in size and mass, details of reduction of excise duty etc., at the time of hearing of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To Cheque No.607996 1,37,744.00 37,26,911.00 35,55,250.00 1,71,661.00 7.The learned counsel for the Assessee submitted that since all the sales in question were duly recorded for and Invoice No.3 was to the lesser extent than the Proforma Invoice value of Rs. 6,44,118/- was to the extent of Rs. 5,21,277/-, as some spare parts of the machinery were not finally purchased by the Purchasing Company, therefore, this explanation with the information given to the Income Tax Authority was duly furnished before the Assessing Authority himself vide letter dated 20.11.1998, but the learned Assessing Authority failed to appreciate the said contention of the Assessee and brought the said amount of Proforma Invoice to tax and the Appellate Authorities have also erred in confirming the said findings. 8.Per contra, the learned Additional Government Pleader Mr.M.Haribabu, appearing for the Revenue submitted that in the absence of the Proforma Invoice produced by the Assessee on the basis of the statement (Slip No.4), the Assessing Authority could conclude that the same was suppressed taxable turnover in the hands of the Assessee to the exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x on the same as suppressed sale. The explanation furnished by the Assessee that the Proforma Invoice is indicated in the said statement to send the same to the Purchasing Dealer, so that the funds can be arranged by him and due payment can be made when the final Invoice is raised, was a plausible and reasonable explanation, for which there was no controverting evidence available with the Revenue to hold otherwise. The fact that the statement of a series of transactions with the same Purchasing Dealer were produced by the Assessee before the Income Tax Authority also under Section 133(6) of the Income Tax Act was not disputed anywhere. The third party like the Selling Dealer, the Assessee, would not produce a false information to the Income Tax Authority of the Purchasing Dealer. The said information furnished by the Assessee is based on the Books of Accounts maintained in the ordinary course of business by the Assessee. There is no evidence on record adduced or brought on record by the Revenue that any sale of machinery by the Assessee to M/s.Anand Cotspin Limited took place, besides aforesaid three Invoices raised accounts of the Purchasing Dealer, during Academic Year 1995-96. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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