Court No. - 59
Case :- SALES/TRADE TAX REVISION No. - 1901 of 2008 Revisionist :- M/S Cremica Agro Foods Ltd Opposite Party :- Commissioner Commercial Tax U.P. Lucknow Counsel for Revisionist :- Punit Kumar Upadhyay,N.C. Gupta Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Shri N.C. Gupta, learned counsel for the applicant- assessee and Shri B.K. Pandey, learned Standing Counsel for the opposite party-revenue.
2. Present revision has been filed by the assessee against the order of the Trade Tax Tribunal, Noida, dated 21.06.2008 passed in Second Appeal No. 461 of 2005 for A.Y. 2001-02 (central). By that order, the Tribunal has is dismissed the appeal filed by the assessee and confirmed the assessment order as also the first appeal order, imposing tax on interstate sale of confectionery items from Greater Noida to Delhi.
3. During the assessment year in question, the assessee claimed to have made dispatch by way of stock transfer from its godown at Greater Noida to its other godown at Ghazipur, in Delhi. Arising from a survey dated 13.06.2002, certain books of accounts of the assessee were seized from its godown at Greater Noida. A further survey is claimed to have been conducted on 14.06.2002 at the Delhi godown of the assessee by the revenue authorities under the U.P. Trade Tax Act, 1948 (hereinafter referred to as the 'Act'). In view of the facts discovered during such survey, the assessing authority disbelieved the existence of the godown of the assessee at Delhi. Further, relying on Ex.13 seized from the godown of the assessee at Greater Noida, the assessing authority reached a conclusion that the assessee had not affected any stock transfer of goods from Greater Noida to Delhi but had, in fact, sold the goods to Delhi. Those conclusions have been confirmed by the appeal authorities.
4. Assailing the above order, learned counsel for the assessee would submit that all the transactions of stock transfer were covered against Form-F issued by the Delhi Branch of the assessee. Further, the existence of the Delhi Branch could not be doubted in view of such Forms being issued by the Delhi Branch of the assessee and also in view of the fact that the assessee had been subjected to tax by the Delhi revenue authorities. Those orders had been filed along with the reply to the show cause notice issued to the assessee. In any case, it has been submitted, the U.P. revenue authorities had no jurisdiction to carry out a survey outside their territorial area, in Delhi. Therefore, reference to such survey is of no consequence, inasmuch as those proceedings would remain wholly without jurisdiction. As a fact, it has been submitted, the U.P. revenue authorities never visited the godown of the assessee at Delhi.
5. With respect to Ex.13 seized from the godown of the assessee at Greater Noida, it has been submitted that it was a register maintained by the local staff of the assessee for personal remembrance. In that exhibit, details of expenses incurred etc. with respect to goods transported from Greater Noida godown were recorded. Thus, there were entries pertaining to sale of goods inside the U.P. as also stock transfer affected to Delhi. Merely because there were certain entries pertaining to intra- state sale of goods, does not mean that the assessee had sold the goods outside the State, inasmuch as while explaining the bona fide, the assessee produced the sale invoices etc. of intra-state sale performed from Greater Noida, it did not lead to a conclusion that all other transactions pertained to sale performed in favour of any person at Delhi.
6. Learned Standing Counsel has opposed the revision and submitted that the assessee could not lead any evidence to establish stock transfer of goods. He would submit that Ex.13 clearly established that the assessee had sold the goods outside the State.
7. Having heard learned counsel for the parties and having perused the record, in the first place, no reliance could have been placed by the authorities on the alleged survey claimed to have been conducted by the U.P. revenue authorities, at Delhi. Clearly, there was no power under the Act to conduct such a survey independently, i.e. without participation of the Delhi sales tax authorities. Also, as a fact, there does not appear to exist any evidence of such survey having been conducted.
8. Then, with respect to the survey conducted at the Greater Noida godown of the assessee, though, there can be no doubt as to such survey having been conducted, however, at present, the reasoning adopted by the revenue authorities also appears to be over-simplistic. Merely because such entries had been recorded in Ex.13, including entries with respect to the sale of goods made inside the State of U.P., it could not and it did not lead to the conclusion that the other entries with respect to transportation of goods to Delhi pertained to sale of those goods. Perusal of the order passed by the Tribunal does not, in any way, bring out evidence or reasoning in support of such conclusion. On the other hand, there does not appear to exist any consideration of the claim made by the assessee supported by Form-F as also assessment orders passed by the Delhi sales tax authorities.
9. The above aspects were necessary to be examined by the Tribunal and a finding of fact should have been recorded with respect to the same before dismissing the appeal.
10. In view of the above, the order dated 21.06.2008 passed in Second Appeal No. 461 of 2005 is set aside and the matter is remitted to the Tribunal to pass a fresh order in accordance with law, based on material already existing on record. Such exercise may be completed as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of this order before the Tribunal.
11. The revision is accordingly allowed.
Order Date :- 26.8.2019 AHA