TVL VINCENTS TIRUNELVELI BOTTLERS PVT LTD Vs. REGISTRAR TAMIL NADU TAXATION SPECIAL TRIBUNAL AND ANOTHER

JUDGEMENT

(1.) This writ petition is filed against the order of the Special Tribunal dated 12.12.2000 made in TC (R) No.2787 of 1997.

(2.) The relevant assessment year is 1988-89. The petitioner is a manufacturer of soft drinks under the name and style of Vincents Bottlers Pvt. Ltd. The petitioner's place Of business was inspected by the inspecting officers on 05.10.1989 and records were perused for case study. The assessee in his statement had admitted that he had consumed 6921 Kg of carbon di-oxide during the assessment year. However, on record it was found that they have consumed 5329.095 KG of carbon di-oxide. The statistical inspector was of the opinion that the petitioner would have manufactured more quantity of soft drinks by the use of difference of 1591.905 Kgs of Carbon di-oxide outside the account. Hence statistical survey was conducted. On the basis of the survey, the assessing authority has worked out the use of 1591.905 Kgs of carbon di-oxide should produced 5,17,220/- bottles of soft drinks valued at Rs.4,19,483/- at the rate of Re.0.93 for sweet drinks and at the rate of Re.0.75 for soda water. The said quantity has been treated by the assessing officer as suppressed turnover, taxable at 4%. The assessing officer also levied penalty at 1 1/2 times under Section 16(2) of the TNGST Act. Further he also levied penalty under Section 22(2) of the TNGST Act for a sum of Rs.447/-.

(3.) The assessee had carried the matter on appeal to the first appellate authority. The actual suppression and the penalty of 150% was upheld by the first appellate authority. However, the penalty under Section 22(2) has been remanded for certain verification. In the second appeal before the appellate tribunal, the appellate tribunal took the view that the statistical survey conducted by the Department in the subsequent year without further evidence could not be treated as basis to treat the outcome of the survey as suppression and there was no material for making a revision of assessment by the assessing authority and in that view of the matter set aside the revision of assessment made by the assessing officer. The revenue took the matter as revision before the special tribunal.