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2008 DIGILAW 69 (ALL)

AGRAWAL DUPLEX BOARD MILLS v. COMMISSIONER OF TRADE TAX, U. P. , LUCKNOW.

2008-01-09

VIKRAM NATH

body2008
JUDGMENT VIKRAM NATH, J. - Heard Sri R. D. Gupta, learned counsel for the applicant and Sri K. M. Sahai, learned Standing Counsel representing the opposite party. The dealer has preferred this revision under section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act") against the judgment and order of the Trade Tax Tribunal, Meerut - 1st Bench, Camp, Muzaffarnagar, dated August 20, 2003. The dispute relates to the assessment year 1997-98. The dealer had disclosed total sales at Rs. 3,01,35,916. Out of which the sales within the State which were taxable were quantified at Rs. 27,13,804 whereas taxable central sales were quantified at Rs. 6,41,451. The assessing officer based upon material on record specially the evidence collected during the survey, dated March 10, 1998 came to the conclusion that the account books had not been properly maintained and were liable to be rejected. After rejection of the account books it estimated the total turnover at Rs. 3,83,54,324 out of which the taxable turnover was determined at Rs. 99,32,212. The dealer preferred appeal which was partly allowed by the Deputy Commissioner (Appeals), who, though confirmed the rejection of the account books, found that the assessment made by the assessing authority was a little higher. It accordingly determined the taxable sale within the State at Rs. 25,00,000 and for the Central at Rs. 5,00,000. The dealer preferred second appeal both with regard to the Central as also with regard to the State assessment. The Department also filed two second appeals. The Tribunal decided all the four appeals by a common judgment. It partly allowed the dealer's appeal for the taxable turnover under the State Act. It fully allowed the appeal with regard to the Central Act and dismissed both the appeals of the Department. The dealer has come up before this court against judgment of the Tribunal partly allowing the appeal under the State Act. Submission of the learned counsel for the applicant is that neither rejection of the account books was justified in the facts and circumstances nor the estimate of the turnover made by the Tribunal could be sustained as it was based on mere conjectures. I have perused the judgment of all the authorities and find that all the authorities and the Tribunal in particular have considered the material on record for rejection of the account books. I have perused the judgment of all the authorities and find that all the authorities and the Tribunal in particular have considered the material on record for rejection of the account books. Gross irregularity was found in the maintenance of the account books at the time of survey. It was not only that there was difference in the stock physically verified at the time of the survey and as reflected in the account books found at the time of the survey but there were other reasons also such as entries in the account books were being made by pencil giving liberty to the dealer to alter the account books at his will; secondly, even though sufficient quantity of coal was found to be consumed by the dealer, no stock register was found at the time of survey with regard to coal nor was it subsequently produced. The entries in the RGI register were also not found to be in order as the opening stock of different dates was not tallying with the closing stocks on previous dates for which also no explanation was tendered. I do not find any reason to interfere with the finding of the authorities regarding rejection of account books based on aforesaid reasons. The finding being a finding of fact does not call for any interference. Once account books were rejected the authorities had made the best judgment assessment, based on the consideration of relevant facts and circumstances. The authorities have given reasons for making the best judgment assessment which has been reduced stage-wise. The Tribunal also gave reasons for not restoring the assessment made by the assessing officer, as reduced by the appellate authority, on the appeal of the Department. It gave reason for not accepting the contention of the Department. Further considering the facts and circumstances, it partly allowed the appeal of the dealer and further reduced the estimated turnover. The submission of the learned counsel for the applicant that the Tribunal ought to have given reasons and the basis on which it was estimating the turnover and since no reasons were given, the estimate made by the Tribunal was bad. From a perusal of the judgment of the Tribunal I find that the Tribunal has given reasons both while rejecting the appeal of the Department for enhancement and also while partly allowing the appeal of the dealer. From a perusal of the judgment of the Tribunal I find that the Tribunal has given reasons both while rejecting the appeal of the Department for enhancement and also while partly allowing the appeal of the dealer. Since no material was placed on record either by the dealer to show that its estimate could not have been more than a particular figure, it is at the discretion of the authorities and looking to the turnover of the dealer, enhancement in the taxable turnover cannot be said to be unjustifiable or highly excessive. In an admitted turnover of more than Rs. 3,00,00,000 where account books are rejected the enhancement of taxable turnover by Rs. 20,00,000 cannot be, by any stretch, said to be unjustified and excessive being less than 10 per cent of the declared turnover. In any case this court in revisional jurisdiction cannot make any assessment or estimate of turnover. The finding recorded by the Tribunal on this issue is also finding of fact warranting no interference in revisional jurisdiction. The revision lacks merit. It is, accordingly, dismissed in limine.