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2009 DIGILAW 4856 (MAD)

STATE OF TAMIL NADU v. MARBLE PALACE.

2009-11-11

P.P.S.JANARTHANA RAJA, R.BANUMATHI

body2009
ORDER Mrs. R. Banumathi - Being aggrieved by the order of the Sales Tax Appellate Tribunal (STAT), Coimbatore Additional Bench, dated October 31, 1994, the Revenue is before us. In this tax case revision, the following questions of law are raised for consideration : "(i) Whether, in the facts and circumstances, the order of the Tribunal is legally correct in so far as it deleted the turnover of Rs. 54,790 at 15 per cent and Rs. 40,340 at eight per cent ? (ii) Whether the Tribunal has failed to consider, as per section 10 of the Tamil Nadu General Sales Tax Act, 1959, the burden is on the assessee to prove the existence of a fact that the quotations were mere quotations and that they were never acted upon ? (iii) Whether the order of the Tribunal in not restoring the penalty as levied by the assessing authority is correct in law ?" The assessee - Marble Palace is a dealer in marble stones and granite slaps. The levy of tax on the disputed turnover for the assessment year 1991-92 relates to the turnover representing the estimation made by the assessing officer mainly on the basis of the certain records recovered by him during the time of inspection conducted on March 17, 1992. The recovered records are quotation and sale bill book maintained by the assessee. The assessing officer has arrived at suppression on the difference amount found in the quotation and sale bill book issued and also another kind of estimation is made on the basis of quotation raised by the assessee, against which, no sale bill has been issued. The assessing officer has arrived at suppression in respect of marbles at Rs. 56,790 and in respect of cuddapah stones at Rs. 40,340, for which, quotations were raised and no sale bills were issued and added equal amount for probable omission and ordered levy of tax at 15 per cent and eight per cent, respectively. Aggrieved by the addition, the assessee preferred an appeal before the Appellate Assistant Commissioner, who dismissed the claim on the ground that the assessee failed to produce details in support of his claim. Being aggrieved, the assessee preferred a second appeal before the Sales Tax Appellate Tribunal. By the impugned order, the Appellate Tribunal ordered deletion of tax at 15 per cent on the turnover of Rs. Being aggrieved, the assessee preferred a second appeal before the Sales Tax Appellate Tribunal. By the impugned order, the Appellate Tribunal ordered deletion of tax at 15 per cent on the turnover of Rs. 56,790 and eight per cent tax on the turnover or Rs. 40,340 and consequential equal addition made on the above turnover by the assessing officer. We have heard Mr. Haja Nazirudeen, learned Special Government Pleader (Taxes) for the Department and Ms. C. Rekha Kumari, learned counsel for the respondent - assessee. The learned Special Government Pleader submitted that the Tribunal erred in throwing the burden on the assessing officer to prove that the assessee had sold goods in respect of the transaction mentioned in the book, which is erroneous. It was further submitted that as per section 10 of the TNGST Act, the burden is on the assessee to prove the existence of a fact that the quotations were mere quotations and that they were never acted upon and the Tribunal failed to consider the case as per the provisions of section 10 of the Act. The estimation was made on the basis of the quotation raised by the assessee, against which, no sale bill has been issued. The Tribunal, observing that there was no material to prove that the assessee had sold any goods to any individual or contractor, held as under : "The assessing authority has also not probed the matter beyond treating the quotation book as sale bill. From the records available, there was no materials to prove that the appellant had sold any goods to any individual or contractor in respect of the items mentioned in annexure B of the assessment order. Since no materials gathered by the assessing authority to treat the quotation as sales, we are unable to sustain the estimate made in this regard. Accordingly, we order for the deletion of tax at 15 per cent on the turnover of Rs. 56,790 and eight per cent tax the turnover of Rs. 40,340 and consequential equal addition made on the above turnover by the assessing officer." As observed by the Tribunal, there were no materials for treating the quotation as sale bill and estimating the turnover on the basis of the quotation. As rightly held by the Tribunal, the assessing authority has not probed the matter beyond treating the quotation book as sale bill. As rightly held by the Tribunal, the assessing authority has not probed the matter beyond treating the quotation book as sale bill. Therefore, we do not find any error or illegality in the order of the Sales Tax Appellate Tribunal and no substantial question of law arises for consideration. Accordingly, the tax case revision is dismissed. No costs.