JUDGMENT Prakash Krishna, J.
1. The Applicant is a dealer of Bhang and the assessment year involved is 1984-85. The applicant carried on the business of Bhang, which is excisable commodity. The applicant has not maintained proper account books for the assessment year in question. The Sales lax Officer estimated the turn over of the dealer taking into account that the contract to sell Bhang was taken by the applicant on payment of Rs. 1,20,000/-. While the applicant has disclosed a turnover of Rs. 5455/- only. The assessing officer estimated the turnover of Bhang at Rs, 1,60,000/- by order dated 2nd September, 1988. This estimate of turnover has been confirmed by the first appellate authority as well as by the Tribunal.
2. Heard learned counsel for the parties and perused the record.
3. Learned counsel for the dealer submitted that in view of the judgment of this court in the case of Subhash Chandra Bhang Dealer v. CST 1986, UPTC 354, the authorities below were not justified in fixing the turnover on the basis of contract money. In contra, the learned Standing Counsel submitted that the dealer/applicant has been carrying on the business of selling Bhang after obtaining Theka from the Excise Department for the last so many years. It is against the human conduct that inspite of suffering loss in the earlier years, where also the applicant disclosed paltry amount of turnover and was enhanced by the department would take theka year after year. Reliance has been placed on the following two judgments of this court (i) Bhagwan Swarup Bansal v. CST 1970 UPTC 375 and (ii) Dharm Devi Uma Shankar v. Commissioner of Sales Tax 1982 UPTC 43.
4. The authorities below have rejected the account books on the ground that the applicant has not maintained accounts of sale and purchase of Bhang. The Tribunal has found that during the assessment year in question the contract of Bhang was taken for a sum of Rs, 1,20,000/- and the dealer has shown the sale of only Rs. 5465/-, It has noted the fact that the applicant has been taking the Theka of Bhang in the previous years also. It has not maintained any accounts except issue register of Bhang, In this view of the matter the sale of Bhang is not verifiable. Therefore, there is DO illegality in the order of this Tribunal in not accepting the disclosed turnover.
5. Learned counsel for the dealer/applicant contended that the turnover fixed by the Tribunal is highly excessive and arbitrary. In support of the submission reliance has been placed upon the judgment of this Court in the case of Subhash Chandra Bhang Dealer (supra). In this case the High Court remanded the matter back to the Tribunal as there was no finding that the assessee had indulged in purchase of Bhang from other source also and sold Bhang at the higher price than fixed by the excise department. The said case is distinguishable and has no application to the facts of the present case. In the case in hand there is finding that the applicant has made sales in addition to the disclosed sales. In other words, the applicant has suppressed the turnover. To arrive at this conclusion the authorities below have taken into consideration the fact that the applicant has been taking the licence of selling Bhang from the Excise Department year after year. The licence to sell Bhang is granted for a year. There was no compelling reason for the applicant to obtain the licence year after year, had there been loss, as claimed by him, The Sales Tax Officer has disbelieved the contention of the applicant on the premises that had there been no profit in the business, no prudent person would have taken licence in the relevant assessment year after paying a sure of Rs. 1,20,000/-. It is reasonable to conclude that the applicant has been selling Bhang outside the books and at a higher rate.
6. A Division Bench of this Court in the case of Bhagwan Swarup Bansal (supra) approved the fixation of the turnover by taking into account the contract money paid by the dealer, Some amount towards profit was added to the contract money, while estimating the turnover. It has been observed that in the absence of proper account and there being scope for underestimating the sales by the assessee, it was reasonable to arrive at the quantum of the turnover by taking into account the expenses incurred by the assesses by way of contract money and other incidental expenses and also to add a fair margin of profit. It appears that the attention of the learned Single Judge was not drawn to the aforesaid observation of the Division Bench who has decided the case of M/s Subhash Chandra Bhang Dealer. Learned Single Judge did not have the advantage of aforesaid dictum of the Division .Bench. Another learned Single Judge in the case of Dharam Devi Uma Shankar v. CST 1982 UPTC 434 has approved the order of the Tribunal fixing the turnover after taking into account the contract money, business expenses etc.
7. In view of the above discussion, I find that the Tribunal in the present case has not committed any illegality in taking into account the contract money, expenses and purchase price including profit for determination of turnover of Bhang. There is no merit in the revision. The revision is dismissed but no order as to costs.