Sri Krishna Agrawal, has put in appearance on behalf of assessee/revisionist. His vakalatnama is taken on record.
Heard Sri Krishna Agrawal, learned counsel for the assessee/revisionist and Sri Bipin Pandey, learned Standing counsel and with the consent of the parties, the matter is being finally decided.
The assessee/revisionist is a partnership firm registered under the U.P. Trade Tax Act and is dealing in kirana, masala etc. The dispute relates to the assessment year 1982-83.
On the information received by the Railway, that one Rajendra Kumar had imported certain bags of Supari from outside the State of U.P. the value of the said imported goods was included in the turnover of the assessee/revisionist by the assessing authority as the name of the husband of one of the partners of the firm i.e. Pushpa Devi happened to be Rajendra Kumar. On the appeal being preferred, the matter was remanded to the assessing authority with the certain directions. However, the assessee/revisionist was not satisfied and preferred further appeal to the Tribunal. The Tribunal vide order dated 22.3.1996 allowed the appeal and after setting aside both the orders issued specific directions to the assessing authority to examine as to whether the bilties which were in the name of Rajendra Kumar were actually related to the assessee/revisionist and as to whether the alleged Rajendra Kumar had taken delivery/custody of those bilties on behalf of the assessee/revisionist. Pursuant to the remand, the assessing authority has again assessed the value of the aforesaid material in the turn-over of the assessee/revisionist vide order dated 25.10.1996 and the further appeals of the assessee/revisionist to the appellate authority as well as to the Tribunal have also been dismissed.
Thus, the present revision has been preferred raising the following question of law.
Whether the Tribunal is justified in affirming the order of the assessing authority even though the alleged goods does not relate to the business of the assessee and the earlier directions of the Tribunal issued while remanding the matter have not been followed in passing fresh order of assessment ?
The Tribunal on the earlier occasion had remanded the matter to the assessing authority to make a fresh assessment after recording finding as to whether the bags of Supari imported in U.P. were in connection with the business of the assessee revisionist. The fresh assessment order, the appellate order as well as the order of the Tribunal in second appeal no where records any finding that the alleged Rajendra Kumar who took delivery of the bags of Supari brought inside U.P. through Railway is one and the same person who happens to be the husband of Smt. Pushpa Devi, one of the partners of the assessee/revisionist. There is no finding that the said bags of Supari were imported in connection of the business of the assessee/revisionist and that the firm was beneficiary of the same. The Tribunal in its impugned order only observes that after such a long distance of time from the date of the import, it would be difficult to start assessment proceedings against Rajendra Kumar who had taken delivery of the said goods and it would also not be possible to get an explanation from the dealer who dispatched the said goods so that the identity of the person who received the goods can be determined with precision. It is only on account of these difficulties that the value of the said goods was added to the turn over of the assessee/revisionist, otherwise the Tribunal finds that there is not other material adverse to it. It may be relevant to mention that Rajendra Kumar husband of Pushpa devi had filed affidavits to the effect that he never imported any Supari inside U.P. and that he he had no connection with the business of the assessee/revisionist. The said affidavits of Rajendra Kumar were not considered and were not even discarded. In substance without establishing the identity of the person who received and took delivery of Supari bags and that it was in connection with the business transactions of the assessee- revisionist, the Tribunal as well as the authorities below manifestly erred in law in adding the value of the said goods to the turn over of the assessee.
Accordingly, the question raised is answered in favour of the assessee/revisionist and against the revenue.
The revision as such stands allowed. The order of the Tribunal dated 5.2.2003, the appellate authority dated 14.9.1998 and that of the assessing authority dated 25.10.1996 are all set aside.
Order Date :- 10.5.2010 S.S.