L. Palamalai, Administrative Member
1. These tax revision cases have been filed against the orders of the Sales Tax Appellate Tribunal, Main Bench, Chennai, in T.A. Nos. 348 of 1997, 349 of 1997 and 350 of 1997 dated September 11, 1998. The assessment relates to the years 1992-93, 1993-94 and 1994-95. Based on records secured during inspection on August 5, 1994, the assessing authority resorted to the best judgment assessment by adding equal time addition and levying penalty at 150 per cent of tax. The orders passed for the three years were dismissed in the first appeal stage. In the second appeal the Appellate Tribunal sustained actual suppression and levied penalty at 50 per cent of the tax due for the assessment year 1992-93 and for the years 1993-94 and 1994-95. The Appellate Tribunal held that the quantum of penalty will be with reference to the slab falling under Section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959. Hence the present revision.
2. Mr. A. Thiagarajan, the learned counsel for the petitioner, contended that the assessee did only labour work and even at the time of inspection he has stated that he was doing labour work for others and though affidavits were filed before the Appellate Tribunal, the Appellate Tribunal failed to apply Regulation 12 of the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959, in considering the affidavit. Therefore, the orders of the Appellate Tribunal are erroneous in law and need interference.
3. We have considered the contentions carefully. It is relevant to refer to the following observations made by the Appellate Tribunal while upholding the assessment for 1992-93 which are relevant for other years also :
“There was inspection in the appellant’s premises by the officers of the Enforcement Wing on August 5, 1994. During inspection certain incriminating materials were recovered. It is seen from the records that the details of slips have been elaborately dealt with in the impugned assessment order slipwise by the learned assessing officer. On the basis of those materials, actual suppression was quantified at Rs. 9,15,476 and on this, the learned assessing officer made an equal time addition to cover up omissions. The appellants contended that these transactions were only service contract by laying marbles in the premises of the customers and it cannot be taken as sales suppression in the appellant’s hands. This objection of the dealers was overruled by the learned assessing officer, holding that the dealers did not discharge its initial onus of proof, that the appellants layed marble slabs to the abovesaid parties and received only service charges. The learned assessing officer also relied on the decision of our honourable Madras High Court in  38 STC 455 (A.S. Ganapathy Chettiar v. State of Tamil Nadu), wherein it was held that the onus of proving the transactions in anamath records, rests on the assessee. The learned first appellate authority had also dealt with this aspect in detail with reference to materials recovered during inspection and also the contentions raised by the appellants. After examining the issue in detail, the learned first appellate authority held that in the instant case, the appellants failed to provide any evidences from the so-called customers, such as Dr. Govindarajulu, Mrs. Vairammal and Rajagopalan, that they had undertaken only the labour works for them. Taking note of the incriminating records recovered from the business premises of the appellants, the learned first appellate authority held that it is crystal clear that the appellants had indulged in direct purchases and sales of marbles but taking shelter under the name of different persons, with the sole intention to evade sales tax. Stating so, the learned first appellate authority confirmed the assessment made in toto, including penalty. At the time of present hearing the learned counsel for the appellants filed a paper book, enclosing affidavits of Govindarajulu, Vairammal and V.S. Rajagopalan. The affidavits given were in the month of September, 1997. In view of this position, the learned Assistant State Representative’s argument that the appellant, at the earliest point of time, had not furnished any counter evidence, before the inspecting officials, or the departmental authorities and the affidavits filed now only an afterthought and not acceptable, has got merits and cannot be brushed aside. It is clear from the records that the appellants failed to discharge its initial onus and they did not let in any satisfactory evidences, to counter the findings arrived at on the basis of materials recovered from the appellant’s premises. Since the materials were recovered from the appellant’s premises side. Since this was not discharged by the appellants, we find no infirmity in the orders of learned first appellate authority in confirming the actual suppression worked out at Rs. 9,15,476. However, with regard to equal time addition made for probable omissions, since slips, incriminating records were recovered for the assessment years 1992-93 to 1994-95 pertaining to the appellants and no other specific materials were available to show that the appellants had indulged in similar unaccounted transactions, and the entire transactions figuring in anamath records were taken as sales suppression, we are of the view that equal time addition for probable omissions is not warranted. The equal time addition for probable omissions is excessive, considering the facts of the case. For the reasons stated above, we are of the unanimous view equal time addition of Rs, 9,15,476 is not warranted and requires to be deleted. Accordingly, the above point is answered.”
The relevant portion of Regulation 12 of the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959 reads as follows :
“12. Fresh evidence and witness.–(I) The party or the respondent shall not be entitled to produce additional evidence, whether oral or documentary, before the Tribunal, but if–
(a) the authority from whose order the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the party or the respondent seeking to adduce additional evidence satisfies the Appellate Tribunal that such evidence notwithstanding the exercise of due diligence was not within his knowledge or could not be produced by him at or before the time when the order under appeal was passed, or
(c) the Appellate Tribunal requires any documents to be produced or any witness to be examined to enable it to pass order or for any other substantial cause,
the Appellate Tribunal may allow such evidence or document to be produced or witness examined :
Provided that the other party shall, in such cases, be entitled to produce rebutting evidence, if any.”
4. Apparently, we find that the Appellate Tribunal on appreciation of facts has held that the records secured during inspection clearly established suppressions as rightly held by the Appellate Assistant Commissioner. As regards additional affidavit filed under Regulation 12 of the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959, the Appellate Tribunal observed that the assessee did not file all these materials before the Appellate Assistant Commissioner. Only in September 1997, the affidavits obtained from Tvl. Govindarajulu, Vairammal and V.S. Rajagopalan were filed and therefore, there is merit in the contention of the State Representative that the affidavit filed is only an afterthought and therefore they are not acceptable. The Appellate Tribunal has categorically held that the appellants failed to discharge their initial onus to let in satisfactory evidence to prove that the transactions are not sales. Thus we find that the conclusions reached by the Appellate Tribunal are on appreciation of facts and there is no case of non-application of mind in passing order while considering the additional affidavits filed under Regulation 12 of the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959. As regards penalty the quantum was reduced to the statutory minimum for 1992-93 and the penalty levied for the years 1993-94 and 1994-95 is in accordance with the slab specified under Section 12(3)(b) of the Act. Thus we find that no error of law is involved in any of the tax revision cases and in such circumstances they are dismissed in the admission stage itself.
And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned.
Issued under my hand and the seal of this Tribunal on the 1st day of August, 2000.