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2014 DIGILAW 91 (TRI)

Krishnapada Saha v. State of Tripura

2014-02-15

DEEPAK GUPTA, S.C.DAS

body2014
JUDGMENT Deepak Gupta; C.J.:- Both these petitions are being disposed of by a common judgment since identical questions are involved. The only difference is that one of the writ petitions relates to the assessment year 2001-2002 and the second to the year 2002-2003. 2. Briefly stated, the facts of the case are that the assessee is engaged in the business of manufacturing of rubber goods. Assessment for the years in question was done and the Assessing Officer found that the assessee had not maintained his books of account properly and, therefore, the actual turnover of the business could not be ascertained. The Assessing Officer went for best assessment and granted benefit of 10% to the assessee for having paid CST though no 'C' forms were produced. The assessee not satisfied by the order of the Assessing Officer dated 12-08-2004 filed an appeal to the Commissioner of Taxes, Tripura who vide his order dated 06-01-2005 not only dismissed the appeal of the assessee, but gave certain findings which were totally damaging to the assessee. The relevant portion of the appellate order dated 06-01-2005 reads as follows:-- From the assessment order it is apparent that the Assessing Authority did not consider the total cost of finished goods i.e. cost of raw materials, fright charges, labour charges, packing charges, electricity charges etc. for both the periods in determining the taxable turnover which are the vital elements for determining the sale prices of the manufactured goods. It is found that wastage of raw material for the year 2001-02 and 2002-03 were showed by the appellant dealer to the tune of 99,000 Kgs and 1,50,378 Kgs respectively which are 41.25% and 43.95% respectively of the total raw materials used in manufacturing which are seem to be abnormal and not acceptable. The Assessing Authority should ascertain the ratio of normal wastage in manufacturing of rubber compound and should accept the same. It is found that total cost of finished goods for the year 2001-02 was Rs. 27,02,000.00 and for the year 2002-03 was Rs. 39,10,467.00 while total sale price of the finished goods as shown by the dealer were Rs. 20,91,200.00 and Rs. 34,09,120.00 for the year 2001-02 and 2002-03 respectively. As such, the loss of the appellant dealer comes to Rs. 6,10,800.00 for the year 2001-02 and the loss comes to Rs. 5,01,347.00 for the year 2002-03. 39,10,467.00 while total sale price of the finished goods as shown by the dealer were Rs. 20,91,200.00 and Rs. 34,09,120.00 for the year 2001-02 and 2002-03 respectively. As such, the loss of the appellant dealer comes to Rs. 6,10,800.00 for the year 2001-02 and the loss comes to Rs. 5,01,347.00 for the year 2002-03. Bearing such huge loss the appellant dealer might not be survived during those periods. So, I am of the opinion that the appellant did not show the actual production as well as sales for both the periods. Hence, Assessing Authority should also consider the total cost of finished goods in determining the taxable turnover for both the periods. Since it is established that the appellant dealer has concealed the actual turnover for both the periods, the Assessing Authority should impose penalty under section 13 of the TST Act, 1976 and should charge interest under section 25 of the Act read with rule 27 of the Rules made thereunder for non-payment of due tax as provided in sub-section (2) and (2B) of section 9 of the Central Sales Tax Act. Therefore, I set aside the assessment order dated 7.8.2004 passed by the Superintendent of Taxes, Charge-V for the year 2001-02 and 2002-03 and both the periods are remanded to the Superintendent of Taxes, Charge-V, with direction to make assessment afresh as discussed above adjusting the amount. Tax has already been paid by the appellant. The appeals are disposed of accordingly. 3. This order was never challenged by the assessee. This means that he accepted the order in its entirety. The reassessment was done by the Assessing Officer in terms of the directions given by the Appellate Authority. Now, the assessee in these proceedings wants to urge that the percentage of raw material shown to have been used by him was correct and the losses shown by him in the earlier years were also correct. A finding has been given in the earlier appellate order that the assessee had not shown the actual production as well as sales for both the periods. This finding was a very damaging finding, but the assessee chose not to challenge the same and accepted the same to be correct. 4. A finding has been given in the earlier appellate order that the assessee had not shown the actual production as well as sales for both the periods. This finding was a very damaging finding, but the assessee chose not to challenge the same and accepted the same to be correct. 4. The Commissioner in his order dated 06-01-2005 also directed the Assessing Authority to consider the total cost of finished goods in determining the taxable turnover and further directed the Assessing Authority to impose penalty and interest. The petitioner would have been better advised to have challenged this order, but the said order was not challenged and has attained finality. Now in the present proceedings, the petitioner cannot be permitted to raise the same pleas which could have been raised against the earlier order. The Assessing Authority has only complied with the first appellate order dated 06-01-2005 and the assessee not having challenged the said order cannot now be heard to argue that the assessment is incorrect. 5. Therefore, we find no merit in the petitions which are accordingly rejected.