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1986 DIGILAW 155 (MP)

Bansilal Baboolal v. Commissioner of Sales Tax

1986-07-03

G.G.SOHANI, R.K.VERMA

body1986
JUDGMENT : ( 1. ) THIS order shall also govern the disposal of Miscellaneous Civil Case No. 294 of 1984 (Basantilal Babulal, Neemuch v. Commissioner of Sales Tax, M. P. , Indore ). ( 2. ) THIS is an application under Section 44 (2) of the M. P. General Sales Tax Act read with Section 13 of the Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (Entry Tax Act) to require the Appellate Tribunal to make a refereace to this Court the questions of law raised by the assessee. ( 3. ) THE applicant-assessee is a dealer carrying on business in cigarette, bidies, etc. and is registered under the provisions of the Madhya Pradesh General Sales Tax Act (hereinafter referred to as "the Act" ). The assessment relates to the levy of entry tax for the period from 1st April, 1978 to 31st March, 1979. The assessing authority made a best judgment assessment for the relevant period on the basis of an inquiry made from certain local persons including one Zulfikarali, who made statements to the effect that the assessee was making benami purchases. ( 4. ) THE assessing authority had issued a show cause notice dated 11th March, 1981, alleging evasion of tax by concealment of purchases of goods made by the assessee under false names and required the assessee to show cause as to why tax at full rate be not levied and why penalty be not imposed in accordance with the rules. The assessee denied that any transactions were made benami. However, without giving any opportunity to the assessee to cross-examine the witnesses whose evidence was relied on and used by the assessing authority for the purpose of making the best judgment assessment, the assessing authority passed the assessment order dated 8th April, 1981, whereby it was also directed to take separate penalty proceedings against the assessee under Section 43 (1) of the Act. The assessing authority levied penalty by order dated 13th July, 1981. ( 5. ) THE appeals filed by the assessee against the said orders of assessment and imposition of penalty respectively before the Deputy Commissioner of Sales Tax are dismissed and second appeals preferred by the assessee before the Tribunal (Board of Revenue, Madhya Pradesh, Gwalior) were also dismissed by a common order passed on 2nd July, 1983 (annexure D ). ( 6. ) THE appeals filed by the assessee against the said orders of assessment and imposition of penalty respectively before the Deputy Commissioner of Sales Tax are dismissed and second appeals preferred by the assessee before the Tribunal (Board of Revenue, Madhya Pradesh, Gwalior) were also dismissed by a common order passed on 2nd July, 1983 (annexure D ). ( 6. ) IT has been the contention of the assessee, inter alia, that the best judgment assessment was not valid because he was not given any opportunity to cross-examine the witnesses whose evidence was relied upon by the assessing authority in coming to the conclusion that the assessee had made benami purchases which were, therefore, added to the taxable turnover. The Tribunal, in its order repelled the contention of the assessee on the ground that the assessee had not sought opportunity to cross-examine any witness and dismissed the appeals. The assessee, being aggrieved by the appellate order of the Tribunal, sought a reference under Section 44 (1) of the Act both in the matter of assessment of tax and of penalty. But the Tribunal refused to make a reference vide its order dated 23rd June, 1984 (annexure F); ( 7. ) THE assessee has, therefore, preferred the instant application under Section 44 (2) of the Act. The assessee in his application raised several questions and has prayed that the Tribunal be required to refer the same. ( 8. ) HAVING heard the learned counsel for the parties and having gone through the appellate order of the Tribunal we are of the opinion that the only questions of law which arise out of the Tribunals order passed in appeals are the following: (1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the assessing authority was not bound to afford to the petitioner the opportunity to cross-examine the witnesses as the same was not asked for by the petitioner ? (2) Whether, on the facts and in the circumstances of the case, the finding in regard to the alleged transactions is vitiated in law ? ( 9. ) WE accordingly direct the Tribunal to make a reference, stating the questions of law referred to above. ( 10. (2) Whether, on the facts and in the circumstances of the case, the finding in regard to the alleged transactions is vitiated in law ? ( 9. ) WE accordingly direct the Tribunal to make a reference, stating the questions of law referred to above. ( 10. ) AS regards Miscellaneous Civil Case No. 294 of 1984, the question of law, in our opinion, which arises out of the Tribunals order is the following : Whether, on the facts and in the circumstances of the case, the Tribunal was right in maintaining the penalty only on the basis of findings in assessment proceedings without taking separate proceedings for penalty and discharging the burden of proof which lay on the department ? ( 11. ) ACCORDINGLY in the said case, we direct the Tribunal to make a reference stating the aforesaid question of law. There shall, however, be no order as to the costs in both these cases.