IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 15.09.2011 Coram The Honourable Mrs.Justice CHITRA VENKATARAMAN and The Honourable Mr.Justice M.JAICHANDREN TC(R). Nos.550 and 572 of 2006 The State of Tamilnadu represented by the Deputy Commissioner (Commercial Taxes) Coimbatore Division Coimbatore – 18 ... Petitioner -vs- Prakash Jewellery Coimbatore ... Respondent Tax Case Revisions to revise the order of the Sales Tax Appellate Tribunal (Additional Bench) Coimbatore dated 9.4.2003 passed in Coimbatore Tribunal State Appeal Nos. 215 of 1999 and 253 of 1999 and appeal against the order of the Additional Appellate Assistant Commissioner (CT), Coimbatore dated 24.12.98 in appeal No.AP.1222/98 against the order of the Commercial Tax Officer, Coimbatore (Assessment order dated 29.5.98 in TNGST 1760165/96-97. For Petitioner : Mr.R.Sivaraman, Special Government Pleader For respondent : Mr.N.Inbarajan ORDER (Order of the Court was made by CHITRA VENKATARAMAN,J) The Revenue is on revisions as against the common order passed by the Tribunal in the assessee's appeal as well as in the appeal filed by the Revenue. T.C.(R). 550 of 2006 is admitted on the following substantial question of law:- "Whether the Sales Tax Appellate Tribunal is correct in deleting the turnover in a sum of Rs.1,21,17,900/- on the basis of statement given subsequent to the assessment?." https://hcservices.ecourts.gov.in/hcservices/ 2. T.C.(R). No. 572 of 2006 is admitted on the following substantial question of law:- "Whether the Sales Tax Appellate Tribunal is correct in deleting the turnover in a sum of Rs.3,85,63,518/- on the basis of statement given subsequent to the assessment?." 3. The assessee herein is in the business of carrying on job work in jewellery items. The nature of the activity of the assessee as a job work was accepted by the Revenue while passing assessment for the assessment years 1995-96 and 1997-98. The present assessment year before us is relating to 1996-97. 4. It is seen from the records that the place of the business of the assessee was inspected by the Enforcement Wing on 5.11.996 and noted the following defects:- "(i). The day book for the year 1996-97 was not written after 26.10.97; (ii). A comparison of actual stock held at the time of inspection with reference to the stock register and other connected records revealed an excess stock of 607.710 gram gold ornaments to the value of Rs.3,05,678/- and (iii) The offence of non maintenance of correct, complete and upto date accounts was compounded in a sum of Rs.1000/- vide O.R. No. 5/96-97 on 4.12.1996. " 5. Apart from that, during search, the Inspecting Officials recovered 30 slips and book marked 'A'. Based on the materials thus seized and the stock variation noted, suppression was worked out treating the details as revealing purchase omissions and sales suppression on gold ornaments. Thus the Assessing Officer estimated turnover for the period not covered by inspection. That apart, the penalty was also proposed to be levied. After hearing the assessee's objections, ultimately the assessment was made resulting in tax liability on the turnover of Rs.5,06,81,418/- and penalty to the tune of Rs.10,78,253/- being 100% on the tax assessed under Section 12(3) (b) of the Tamil Nadu General Sales Tax Act. Aggrieved by this, the assessee went on appeal before the Appellate Assistant Commissioner. 6. The assessee contended that the value of business carried on was only job work on the gold belong to the dealers entrusting work to the assessee to which the assessee had made use of artificial pearls and stones purchased from the registered dealers and hence, https://hcservices.ecourts.gov.in/hcservices/ there being no sale, the question of treating the transaction as sales did not arise. The assessee contended that in the absence of any purchase of gold and other items for manufacturing gold articles and selling the same, as such, the assessment as though the assessee was a dealer in gold jewellery did not arise. The Appellate Assistant Commissioner referred to the deposition made at the time of search on 5.11.96 from the authorised person that the assessee was not manufacturing jewellery for selling the same and held that the assessee never admitted that they purchased materials for the purpose of manufacturing gold jewellery for sale. 7. As regards notings in the slips as well as stock variation, the assessee took the plea that the slips represented the job work entrusted by the dealers with the assessee. It was contended by the assessee that the gold was entrusted by the dealers for the purpose of manufacturing new gold ornaments and all that the assessee received therein was only coolie for the job work done and there was no evidence for effecting sale of gold jewellery. 8. With reference to stock variation, the assessee pointed out that an extent of 598.160 grams represented sample jewellery given by other dealers for the purpose of manufacture of jewellery items for them. As such, there was stock variation to be alleged and hence, the question of further estimation did not arise. With reference to the book marked 'A", the assessee stated on the same lines as in the case of slips. In the light of the above contention, with the materials produced, the assessee prayed for accepting its claim. 9. As far as the recovery of slips was concerned, the Appellate Assistant Commissioner went into each one of the slips and ultimately came to the conclusion that the entries in the slips indicated making of jewellery by entrusting to job workers to main and sub workers whose names were mentioned therein. It further pointed out that the assessee had maintained specific orders received from the principal customers. They had also maintained dealer-wise receipt of old gold and maintained issue of old gold vouchers by the dealers. Separate accounts were maintained as records issue of old gold and receipt of new ornaments for every main worker and maintained separate accounts for 18 workers. 10. Referring to the manner in which the gold was issued on orders to the principal / main workers, who in turn handed over new ornaments by raising receipt vouchers, the Appellate Assistant Commissioner pointed out that the assessee had maintained delivery bills to the principal dealers, placing orders, and in the delivery bills the specific items of jewels, gross weight, net weight, wastage cooly charges were mentioned. The assessee had also maintained corresponding issue vouchers of new ornaments. The receipt vouchers were initialled by the Inspecting Officers and party's ledger, order forms, issue and receipt of vouchers, delivery bills and labour bills https://hcservices.ecourts.gov.in/hcservices/ were also initialled by Inspecting Officers. In the circumstances, the first Appellate Authority pointed out that even after filing of the reconciliation statement of job work, the Assessing Officer had not made any cross verification to ascertain the genuineness of single point tax at the hands of the dealers whose names were found in the bills and the details of which are filed in the statement filed at page 355 of assessment file. The Appellate Assistant Commissioner further found that the assessee had maintained detailed orders received from dealers, maintained dealers and description of new jewels received from main workers and details of new ornaments handed over to the dealers. Thus, going by these details, the first Appellate Authority, accepted the case of the assessee as far as 20 slips were concerned. 11. As regards the variation alleged on stock aspect, the first Appellate Authority agreed with the assessee's contention based on the materials produced that they represented sample jewellery given by the dealers for manufacture of jewellery on their account. With reference to book marked 'A', it is seen from the order of the first Appellate Authority that the assessee had maintained detailed job work accounts in respect of each dealer who placed orders and each main worker to whom job work was entrusted. It however pointed out to the admission of the assessee that he could not maintain details accounts for each type of jewel entrusted for embedding and polishing to the sub workers. The written pages in the book marked 'A' contained details of description of jewels with their gross weight, net weight and weight of stones. The various numbers, description, quantity of each type or class of jewel were also mentioned therein which could be compared with the following accounts maintained by the assessee:- "(i) Order forms received from the dealers (ii) Receipt vouchers maintained by the assessee in receipt of various jewels from the main workers (iii) Delivery bills and issue vouchers maintained by the appellants for handing over the finished or new jewels to the respective dealers who placed orders. " 12. Having regard to the above said aspect, the first Appellate Authority felt that the overall nature of business activities engaged in by the assessee during previous years and 1997-98 have to be borne in mind and a thorough verification had to be undertaken by the Assessing Authority to reconcile the entries found in book marked 'A' and thereafter come out with the findings of liability of tax. In so holding, the first Appellate Authority set aside the actual and estimated additions towards sales suppression of gold ornaments and purchase suppression of old gold by the Assessing Authority, in respect of book marked 'A' and remitted the issue back to the Assessing Authority to re-do the assessment. As regards levy of penalty, the first Appellate Authority set aide the same with a https://hcservices.ecourts.gov.in/hcservices/ direction to pass necessary orders after verification of the book marked 'A' . 13. As against the order of the remand, the assessee filed an appeal before the Tribunal and as against the cancellation of assessment on stock variation and on slips, the Revenue went on appeal before the Tribunal. 14. As far as book marked 'A' is concerned, the assessee referred to the contents in the book as well as to the assessment made in the immediate preceding year and following year, wherein the Revenue had accepted the nature of the transactions as works contract. The Tribunal pointed out that the Revenue had not adduced any materials to prove sales by the assessee or receiving consideration therefor. In the absence of any evidence that the assesee effected sale/ purchase of jewellery item, the details contained in book marked 'A' could not be treated as evidence of sales. The Tribunal pointed out that the assessee had proved that the names noted in the book marked 'A' referred to sub artisans, whose existence had also been proved by evidence. In the background of the said facts, after going through the details in the book marked 'A' as well as in the statement recorded at the time of inspection, wherein the assessee had categorically stated that they were only carrying on job work, the Tribunal accepted the case of the assessee, thereby set aside the order of remand made by the Appellate Assistant Commissioner. As far as this aspect is concerned, except for contention that the seized materials had to be proved by the assessee, there are no materials pointed out by the Revenue to hold that the entries in the materials established any sale or purchase having been effected by the assessee, resulting in suppression. 15. On the materials produced before the Tribunal, with the entries in book marked 'A', the delivery bills and coolie invoices and other records maintained, it was pointed out that they were only job work undertaken on behalf of other dealers. Thus, when existence of ingredients of sale was proved, the Tribunal came to the conclusion that there was no case for remand. Thus accepting the case of the assessee, the Tribunal allowed the assessee's appeal. Even though learned Special Government Pleader (Taxes) appearing for the Revenue pointed out that the Tribunal ought not to have interfered with the order of remand in the case, he does not deny as a matter of fact both in the preceding year and subsequent year, the nature of the business of the assessee had been consistently accepted by the Revenue that it was only in the nature of job work. Contemporaneous records produced by the assessee supporting the entries in the book marked 'A' also could not be in any manner be disputed by the Revenue. Thus, a reading of the order of the Tribunal, shows that the Tribunal had gone into the records to hold that the business of assessee consistently being one of a job work, there was no material to hold otherwise. Being pure question of fact, we do not find any https://hcservices.ecourts.gov.in/hcservices/ justification to accept the plea of the Revenue to set aside the order of the Tribunal. 16. As regards stock variation as well as alleged suppression on the basis of 20 slips, we have gone through the order of the Tribunal as well as the Appellate Assistant Commissioner, who had dealt with the issue in depth. The Revenue does not deny as a matter of fact, that the details given by the assessee in support of the entries represented dealings of other dealers, who had entrusted the job work with the assessee. It is a matter of relevance to note that statements were recorded for the assessee to show that they are not in the business of making new ornaments from the old gold ornaments for sale. Even at the time of inspection, it was categorically stated by the assessee that they were only carrying on job work. The jewels which were recovered during inspection were sample jewellery given by other dealers for the purpose of manufacture of similar jewellery items. No steps were taken by the Revenue to elucidate further information on the materials produced. In the circumstances, we do not find that there exist any case for this Court to interfere with the findings of the Tribunal. 17. In the above circumstances, satisfied with the contentions of the assessee, we have no hesitation in confirming the order of the order of the Tribunal, thereby rejecting the Revenue's case. The above Tax Case Revisions are dismissed. No costs. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar bg To 1. The Deputy Commissioner (Commercial Taxes) Coimbatore Division, Coimbatore – 18 2. The Sales Tax Appellate Tribunal (Additional Bench) Coimbatore. 3. The Additional appellate Assistant Commissioner (C.T) Coimbatore. 4. The Commercial Tax Officer, Coimbatore. + 1 cc to Mr.N. Inbarajan, Sr.57410 + 1 cc to the Special Government Pleader Sr.57297 TC(R). Nos.550 and 572 of 2006 KK(CO)Eu 11.10.11 https://hcservices.ecourts.gov.in/hcservices/