Vaigai Traders Vs. State of Tamil Nadu - Court Judgment

Excerpt:
- t.n. estates (abolition & conversion into ryotwari) act, 1948 [act no. 26/1948]. sections 5(2) & 67; [a.p. shah, cj, mrs. prabha sridevan & p. jyothimani, jj] suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. -- t.n. estates (abolition & conversion into ryotwari) act, 1948. sections 5(2) & 67; suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. orderf.m. ibrahim kalifulla, j.1. this tax case revision has been preferred by the assessee, where the following substantial questions of law have been framed:(i) whether, on the facts and in the circumstances of the case, the tribunal was right in holding that the department has discharged burden of proof cast on it to sustain the additions is correct in law ?(ii) whether, on the facts and in the circumstances of the case, the tribunal was right in partly remanding the turnover, when the basis for all are one and the same, is correct in law ?(iii) whether, on the facts and in the circumstances of the case, the tribunal was right in sustaining the penalty imposed on the petitioner without bringing home the guilt, is right in law ?2. the assessee is a dealer and manufacturer of furniture. the assessment relates to the year 1990-91. the assessee reported with a turnover of rs. 1,865. there was an inspection on july 17, 1990 by the enforcement wing. based on the inspection, the turnover was fixed at rs. 15,90,125. such turnover came to be arrived at on the footing that actual suppression was estimated based on statistical report. apart from such tax liability, there was an equal addition and also imposition of penalty to the extent of 1 1/2 times. the assessee challenged the order of the assessment before the appellate assistant commissioner. the appellate assistant commissioner modified the taxable turnover in a sum of rs. 3,51,305. the appellate assistant commissioner also reduced the penalty to an extent of 50 per cent. the equal addition was also deleted. challenging the order of the appellate assistant commissioner, both the assessee as well as the department went on appeal before the tribunal. by the impugned common order, the tribunal took the view that the purchase turnover estimated under section 7a of the tngst act, is liable to be set aside, but the estimation of purchase turnover of raw materials for the manufacture of almirahs, wire chairs and tables had to be reconsidered by the assessing authority and therefore, for that purpose, it was remitted back. as far as the equal addition was concerned, the deletion of the same by the appellate assistant commissioner was confirmed. equally, the levy of penalty at the rate of 50 per cent of the tax due on the actual suppression was also sustained.3. we heard mr. a. thiyagarajan, learned senior counsel appearing for the revision petitioner and mr. haja naziruddin, learned special government pleader appearing for the respondent.4. having heard, we find that the restoration of estimated turnover as assessed by the assessing officer, as ordered by the appellate tribunal, came to be made after a detailed analysis of various statistical details culled out in the inspection held on july 17, 1990. on a perusal of the order of the assessing authority as well as that of the tribunal, we find that the ultimate conclusion of the tribunal to restore the estimation based on the statistical details as was carried out by the assessing officer was out-and-out based on the facts and figures drawn from the inspection records. as the assessing authority as well as the tribunal, who are the fact-finding authorities, have bestowed their valuable time and consideration while reaching a conclusion that such details relating to the actual figures were to be drawn based on the statistical figures, we are not inclined to dislodge such a finding of fact in a revision petition filed before us. therefore, we do not find any question of law as well in order to interfere with the said finding of fact arrived at by the assessing authority as confirmed by the appellate tribunal. since the tribunal itself has sustained the deletion of equal addition as made by the appellate assistant commissioner, there is nothing to be examined on that aspect. as far as the remittal order made by the tribunal in respect of the remand of turnover arrived at under section 7a of the act, is concerned, we find that the assessing authority carried out a detailed exercise while determining the turnover for the purpose of the purchase tax under section 7a of the act. here again, the assessing authority took into account various consumables like emery sheets, welding rods, patti, etc., for the purpose of determining the purchase tax liability under section 7a of the act. therefore, in all fairness, there was no necessity for the tribunal to have interfered with such a factual finding reached by the assessing authority while ordering for remand on that score. therefore, we are of the considered opinion that no further remand was called for in order to arrive at the purchase tax, more so, at this distance point of time.5. in fine, we confirm the order of the tribunal in so far as it ordered for the restoration of the estimation with regard to the stock variation noticed and arrived at by the assessing authority, which resulted in the determination of the taxable turnover in a sum of rs. 8,26,305 and the tax levied thereon. in so far as the equal addition is concerned, the tribunal itself has sustained the order of the appellate assistant commissioner deleting such equal addition. the order of remittal passed by the tribunal for the purpose of estimation of purchase tax turnover of raw materials for the manufacture of almirahs, wire chairs and tables is set aside and after deleting the equal addition as confirmed by the tribunal, the taxable turnover determined by the assessing authority in a sum of rs. 15,90,125 stands modified as rs. 8,26,305. the tax payable on the sum of rs. 8,26,305 shall be calculated and recovered from the assessee.6. the tax revision is partly allowed. no costs.

Judgment:
ORDER

F.M. Ibrahim Kalifulla, J.

1. This tax case revision has been preferred by the assessee, where the following substantial questions of law have been framed:

(i) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Department has discharged burden of proof cast on it to sustain the additions is correct in law ?

(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in partly remanding the turnover, when the basis for all are one and the same, is correct in law ?

(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining the penalty imposed on the petitioner without bringing home the guilt, is right in law ?

2. The assessee is a dealer and manufacturer of furniture. The assessment relates to the year 1990-91. The assessee reported with a turnover of Rs. 1,865. There was an inspection on July 17, 1990 by the Enforcement Wing. Based on the inspection, the turnover was fixed at Rs. 15,90,125. Such turnover came to be arrived at on the footing that actual suppression was estimated based on statistical report. Apart from such tax liability, there was an equal addition and also imposition of penalty to the extent of 1 1/2 times. The assessee challenged the order of the assessment before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner modified the taxable turnover in a sum of Rs. 3,51,305. The Appellate Assistant Commissioner also reduced the penalty to an extent of 50 per cent. The equal addition was also deleted. Challenging the order of the Appellate Assistant Commissioner, both the assessee as well as the Department went on appeal before the Tribunal. By the impugned common order, the Tribunal took the view that the purchase turnover estimated under Section 7A of the TNGST Act, is liable to be set aside, but the estimation of purchase turnover of raw materials for the manufacture of almirahs, wire chairs and tables had to be reconsidered by the assessing authority and therefore, for that purpose, it was remitted back. As far as the equal addition was concerned, the deletion of the same by the Appellate Assistant Commissioner was confirmed. Equally, the levy of penalty at the rate of 50 per cent of the tax due on the actual suppression was also sustained.

3. We heard Mr. A. Thiyagarajan, learned senior counsel appearing for the revision petitioner and Mr. Haja Naziruddin, learned Special Government Pleader appearing for the respondent.

4. Having heard, we find that the restoration of estimated turnover as assessed by the assessing officer, as ordered by the Appellate Tribunal, came to be made after a detailed analysis of various statistical details culled out in the inspection held on July 17, 1990. On a perusal of the order of the assessing authority as well as that of the Tribunal, we find that the ultimate conclusion of the Tribunal to restore the estimation based on the statistical details as was carried out by the assessing officer was out-and-out based on the facts and figures drawn from the inspection records. As the assessing authority as well as the Tribunal, who are the fact-finding authorities, have bestowed their valuable time and consideration while reaching a conclusion that such details relating to the actual figures were to be drawn based on the statistical figures, we are not inclined to dislodge such a finding of fact in a revision petition filed before us. Therefore, we do not find any question of law as well in order to interfere with the said finding of fact arrived at by the assessing authority as confirmed by the Appellate Tribunal. Since the Tribunal itself has sustained the deletion of equal addition as made by the Appellate Assistant Commissioner, there is nothing to be examined on that aspect. As far as the remittal order made by the Tribunal in respect of the remand of turnover arrived at under Section 7A of the Act, is concerned, we find that the assessing authority carried out a detailed exercise while determining the turnover for the purpose of the purchase tax under Section 7A of the Act. Here again, the assessing authority took into account various consumables like emery sheets, welding rods, patti, etc., for the purpose of determining the purchase tax liability under Section 7A of the Act. Therefore, in all fairness, there was no necessity for the Tribunal to have interfered with such a factual finding reached by the assessing authority while ordering for remand on that score. Therefore, we are of the considered opinion that no further remand was called for in order to arrive at the purchase tax, more so, at this distance point of time.

5. In fine, we confirm the order of the Tribunal in so far as it ordered for the restoration of the estimation with regard to the stock variation noticed and arrived at by the assessing authority, which resulted in the determination of the taxable turnover in a sum of Rs. 8,26,305 and the tax levied thereon. In so far as the equal addition is concerned, the Tribunal itself has sustained the order of the Appellate Assistant Commissioner deleting such equal addition. The order of remittal passed by the Tribunal for the purpose of estimation of purchase tax turnover of raw materials for the manufacture of almirahs, wire chairs and tables is set aside and after deleting the equal addition as confirmed by the Tribunal, the taxable turnover determined by the assessing authority in a sum of Rs. 15,90,125 stands modified as Rs. 8,26,305. The tax payable on the sum of Rs. 8,26,305 shall be calculated and recovered from the assessee.

6. The tax revision is partly allowed. No costs.