ORDER M.C. Agarwal, J.
1. These five revision petitions under Section 11 of the U.P. Trade Tax Act raise identical issues. They were, therefore, heard together and are being disposed of by this common judgment.
2. In TTR Nos. 65 to 68 of 1999, there is a common revisionist and these petitions relate to assessment years 1991-92, 1992-93, 1993-94 and 1994-95.
3. In TTR No. 63 of 1999, the revisionist is M/s. Pathak Coal Agency and revision petition relates to assessment year 1982-83.
4. I have heard Sri Bharat Ji Agarwal, learned Senior Advocate assisted by Sri Kunwar Saxena, Advocate for the revisionist in the first group of revision petitions and Sri Alok Kumar, Advocate for the revisionist in TTR No. 63 of 1999. Sri Surya Prakash, learned Standing Counsel argued the matters on behalf of the Commissioner of Sales Tax.
5. The revisionists are coal merchants. Coal is an essential commodity under the Essential Commodities Act, 1955 which was enacted to provide, in the interest of general public, for the control of production, supply and distribution of trade and commerce in certain commodities. In pursuance of the Act, the Government of Uttar Pradesh promulgated the U.P. Coal Control Order, 1977 to regulate trading in coal and distribution of this essential commodity in a proper manner. In all these cases, the dealers revisionists had claimed that they worked as commission agents for the purchases of coal for them and charged commission. Coal is imported from places outside the State of U.P. like Dhanbad in Bihar from where it is transported by motor truck to the places where these revisionists carry their business. The truck hire is claimed to have been paid directly by the buyers to the transporters on the arrival of the goods and, therefore, the truck hire was not included in the turnover by the dealers. The books of accounts were rejected and the turnover was determined by best judgment assessment by estimating the quantity of coal imported, the purchase price thereof, the freight and other charges incurred thereon and the margin of profit expected to be earned by the revisionist. The contention that the truck hire is not includible in the turnover was rejected by the authorities below holding that it was not established that the dealers acted as agents and the truck hire was paid by the purchasers. It was also held in some of the orders that even if the truck hire was paid by the purchasers directly to the transporters, the same was includible in the turnover because it was the burden of these revisionists to pay the truck hire and the principle laid down by the Hon'ble Supreme Court in Mc Dowell and Company Ltd. v. CTO, 1985 UPTC 747: (AIR 1986 SC 649) were invoked. The Tribunal has upheld the inclusion of the estimated truck hire in the turnover of these dealers.
6. The main question that has been agitated in these revision petitions, therefore, is whether the truck hire is includible in the turnover. The learned Counsel for the revisionists placed strong reliance on the provisions of the U.P. Control Order, 1977. Admittedly, these dealers hold licences in Form B prescribed under this order. The Order defines a dealer as under :
" "Dealer" means a person carrying on as a principal agent, whether separately or in conjunction with some other business, the business of import, purchase or storage for sale and sale of coal, in wholesale and granted a licence in Form 'B' and commonly known and herein referred to as Coal Agent or in retail and granted a licence in Form 'C' and commonly called and referred to herein as 'Coal Depot Holder' but does not include a consumer who imports, purchases or stores coal for his own use."
Licensee has been defined as under :
" "Licensee" means a person holding a licence under the provisions of this Order in Form 'B' or Form 'C' or Form 'D' appended to this Order."
(a) Rule 4 of the Order provides that no person shall import coal and carry on business as a coal agent, carry on business as a Coal Depot Holder or run a brick kiln with coal except under and in accordance with the terms and conditions of a licence issued under this Order. Sub-clause (b) of Rule 5 provides that every licence granted or renewed under this Chapter shall be in Form B in the case of a coal agent, in Form C in the case of a Coal Depot Holder and in Form D for running a brick kiln. Sub-clause (h) of Rule 5 provides that no person shall simultaneously hold licence to work as coal agent and Coal Depot Holder at one place. Rule 8 provides for regulation of the business and Sub-clause (ii)(A) regulates the price of coal. This clause stands as under :
"(ii)(A). The Coal agent shall not sell coal at rates higher than those fixed from time to time by the District Magistrate in the following manner-- ,
(a) F.O.R. Colliery price actually paid by the dealer;
(b) Central and State Sales Tax or any other taxes' ceases and duties at rates applicable at the time of sale; and
(c) Handling charges at such rate per metric ton of coal as may, from time to time, be fixed by the State Government."
Sub-clause (B) of Rule 8 provides that a Coal agent shall not sell coal to any person who does not hold a licence issued under this Order.
7. As stated above, the revisionists are licensees in Form B. Form B is as under :
"LICENCE IN FORM 'B' Licence for wholesale dealer of coal (coal agent) for soft coke and slack coal for domestic consumption and use by brick kilns under the Uttar Pradesh Coal Control Order, 1977.
(1) Register no....... Licence no..........
(2) Name of the Licensee..................
(3) Business address......................
(4) Exact location of the place of storage if it is different from the business address........
(5) This licence is valid up to...............
(6) The licence is granted subject to the conditions noted below :
Dated ............. Signature of Licensing Authority District.................
RENEWAL ENDORSEMENT Date of renewal Date of expiry Signature of Licensing Authority Remarks
1. The licensee shall maintain an office or branch office in the district.
2. The licensee shall display his licence prominently at the place of his business.
3. The licensee shall not carry on business or store coal except in the premises specified in this licence provided that the premises may be changed or additional premises used with the permission of the Licensing Authority.
4. The licensee shall maintain a Stock and Sales Register or such other register and submit such returns as may be required by the Licensing Authority or the State Coal Controller.
5. The licensee shall take timely action to submit programme for the movement of the coal, allotted to him by the Licensing Authority, with the Coal India Limited or its subsidiary concerns and the Railway and shall advise the Licensing Authority or reasons for which he does not intend to submit or has not submitted the programme for any movement or intends to or has got such programme cancelled at the time of allotment. He shall be liable for appropriate action if such reasons are not found satisfactory by the Licensing Authority.
6. Licensee shall import coal only of good quality and proper size which should be according to the specifications laid down by the Indian Standards Institute.
7. The licensee shall furnish particulars of grade or coal. Railway receipt and colliery bill of the coal immediately after its loading from the colliery to the Licensing Authority so that he can allot it to licensees in Form 'C' or 'B', as the case may be, before the coal actually arrives at the destination.
8. The licensee shall sell coal to licensee in Form 'C and 'D' issued under the U.P. Coal Control Order, 1977 as per allotment made by the Licensing Authority. If any allottee does not take delivery of the coal allotted to him within 24 hours of the arrival of the coal at the destination station (of which the licensee shall inform the allottees), the licensee shall after taking permission from the Licensing Authority, be at liberty to sell it to other licensee in Form 'C' and 'D' in the district and if such coal or any part thereof cannot be sold in the district within the next 24 hours, may, with the previous approval of the Licensing Authority, sell it to the licensees of other districts of U.P.
9. The licensee shall not refuse to sell or withhold from sale any coal in his possession in such quantities at such time, to such persons and in such manner as the Licensing Authority may, by written order, direct.
10. The licensee shall charge the price of coal from the purchasers only at the time of or after the sale and not before.
11. The licensee shall render all reasonable facilities to persons authorised by the Licensing Authority for inspection of his premises, stock and accounts.
12. The licensee shall render all reasonable facilities to furnish correctly such information as may from time to time be demanded from him and shall carry out such instructions as may, from time to time, be given to him, by the Licensing Authority.
13. Any contravention of these conditions by the licensee or by his agent or servant will render the licence liable to cancellation without prejudice to any other action that may be taken against him.
The contention that the dealers work as commission agents for the buyers of coal holding licences in forms 'C' and 'D' was not supported by the revisionists by any evidence to show that such buyers appointed the revisionists as their agents for procuring coal from outside the State of U.P. and transporting it on their behalf to their places of business. The conditions of the licence issued to the revisionists in Form 'B' require the coal agents to "sell" the coal and the various provisions that have been made for regulating the price show that the so-called coal agent on a principal to principal basis. Clause 10 of the conditions of licence require that the licensee shall charge the price of coal from the purchasers only at the time of or after the sale and not before. Thus, a licence in Form 'B' prohibits the licensee from working as a commission agent. The mere fact that the provisions of the Order describe the wholesale dealer as a coal agent does not mean that the wholesale dealer works as a commission agent for the buyers. The word "agent" has apparently been used as a convenient mode of description and probably to indicate that the wholesale dealer is an instrument or agency for carrying out the purpose of the order that is the regulation of trading in coal.
8. Apart from the provisions of the Coal Control Order, there was no evidence led by the revisionists to show that they did not purchase the coal for themselves and did not sell the coal as goods belonging to them and were merely working as a broker for bringing about the transaction of coal between the holders of licences in Forms 'C' and 'D' on one hand and ex-U.P. collieries or coal merchant on the other. As a matter of fact, had it been so, there would have been no sale by the revisionists to the persons to whom the goods have actually been supplied and no tax could be levied under the U.P. Trade Tax Act because the transactions would amount to inter-State purchases made by the revisionists on behalf of their principles and such transactions being in the course of inter-State trade and commerce, could not be subjected to tax on the principles laid down by the Hon'ble Supreme Court in Commissioner of Sales Tax v. Bakhtawar Lal Kailash Chand, AIR 1992 SC 1952. Therefore, the findings of the authorities below that the revisionists effected the purchases and sale on principal to principal basis and not as commission agent for the buyers is correct and cannot be interfered with in revisional jurisdiction.
9. The learned Counsel for the revisionists, however, contended that since the truck hire or freight has not been paid by the revisionists and under the terms of the Control Order, they could not change freight from the buyers, the same could not be treated as part of the turnover. Turnover has been defined in Section 2(i) of the Act which is as under :
" 'turnover' means the aggregate amount for which goods are supplied or distributed by way of sale or are sold by a dealer, either directly or through another, on his account or on account of others, whether for cash or deferred payment or other valuable consideration :
Explanation I (omitted) Explanation II-- Subject to such conditions and restrictions, if any, as may be prescribed in this below-
(i) the amount for which goods are sold or purchased shall include the price of the packing material in which they are packed, and any sum charged for anything done by the dealer in respect of the goods sold, at the time of or before the delivery thereof, other than cost of freight or delivery or cost of installation or the amount realised as sales tax or purchase tax, when such cost or amount is separately charged.
(ii) Any cash or other discount on the price allowed in respect of any sale and any amount refunded in respect of articles returned by customers shall not be included in the turnover; and
(iii) Where for accommodating a particular customer, a dealer obtains goods from another dealer and immediately disposes of the same without profit to the customer, the sale in respect of such goods shall be included in the turnover of the latter dealer alone."
A similar controversy arose before me in CST v. Sharma Coal Company, 1999 UPTC 62, where it was held that the freight or truck hire having been actually borne by the buyers and it being the legal burden of the seller who imported coal, the amount of freight was includible in the seller's turnover. The relevant observations and findings are contained in paragraphs 6 and 7 of the said judgment which are reproduced below :
"6. The definition of turnover, thus, shows that the aggregate amount for which the goods are supplied to the buyers is the turnover. Admittedly, the respondent's buyers are required to pay the freight as well for acquiring the goods. Therefore, such freight is included in the aggregate amount and form part of the turnover. The exclusion provided for in Sub-clause (1) of Explanation II is in respect of freight that is paid by the buyers for the transport of goods after their purchase from the seller's place to the buyer's place. The freight that is contemplated by the exclusionary 8 provision contained in the Explanation. The freight is paid by a seller for the goods purchased by him for sale is his legal burden and is a part of his cost, for acquiring the goods. It is the dealer respondent who hired the trucks and settled the freight for transport of coal from the collieries etc. to his place of business in U.P. Therefore, it was his legal obligation to pay the amount of truck hire and it is immaterial how he gets the same paid. Therefore, the mere fact that the dealer asked the carrier to unload the goods i.e. the coal at the buyer's place and asked the buyer to pay the freight directly to the driver would not make things any different. The buyer of coal from the respondent only discharges the obligation of the seller i.e. the dealer respondent. This Court was conscious of the fact that freight inwards and freight outwards have different aspects so far as the determination of turnover was concerned. That is why it noticed that there was a lot of controversy between the parties whether the freight is inward freight for bringing coal inside U.P. to the depot of the respondent-dealer or it is an outward freight when the respondent sold the coal inside U.P. If both types of freights were to be treated alike, there was no need for having the controversy or for remanding the matter to the Tribunal for settling that controversy. Therefore, in my view, the direction of this Court contained in para 5, which is certainly ambiguous, should have been read in the light of the law on the point and the definition of turnover, as contained in the Act.
7. In Mc Dowell and Co. Ltd. v. Commercial Tax Officer, 1985 UPTC 747 (SC) : (1985) 154 ITR 148 : (AIR 1986 SC 649), the Hon'ble Supreme Court dealt with a similar controversy relating to payment of excise duty. In that case, the vendor i.e. Mc Dowell and Co, Ltd. asked its buyers to pay the excise duty directly to the Government and, therefore, did not include the same in the price and turnover for the purposes of sales tax. The Hon'ble Supreme Court held that payment of excise duty was the legal burden of the manufacturer and, therefore, if payment is made under a contract or arrangement by any other person, it would amount to the meeting of the obligation of the manufacturer and nothing more. The principle of law (laid) down by the Hon'ble Supreme Court squarely applies to this case. The fact that the dealer did not show the freight as a part of the price charged from the buyers was, therefore, of no legal consequences. The fact remains that the buyers did bear the burden of freight, that was the burden of the respondent and, therefore, the amount of freight was part of the aggregate amount for which the goods were supplied to them."
In the present case also, it is not in dispute that the revisionists purchased the goods from places outside the U.P. and hired the trucks for the transport of coal to their places of business and were obliged to pay the truck hire to the transporter. Therefore, the mere fact that they adopted a modus operandi under which they asked their buyers to pay the truck hire, will not exclude the amount of freight from the amount from which the goods are supplied.
10. As regards the contention that under the provisions of the Control Order, the revisionists could not charge the freight from the buyers, reliance is placed on Clause (ii)(A) and (iii)(c) of Rule 8. The provisions of Clause (ii)(A) have already been quoted above. Sub-clause (iii)(c) provides that a Coal Depot Holder shall-
(c) not sell coal at rates higher than those fixed from time to time by the District Magistrate in the following manner :
(1) Price of coal paid by him to the wholesale dealer as fixed by the District Magistrate under Sub-clause (ii)(A) of this clause;
(2) Railway freight including or other charges collected by the Railway, exclusive of wharfage and demurrage paid to the Railway, if any, or the actual freight paid by road subject to the maximum as per rates fixed by the Transport Departments;
(3) Octroi, toll or any other tax or fee actually paid, if any, at destination;
(4) Charges of unloading of wagons, transport charges from Railway Station to the Depot premises and other incidental expenses as fixed by the District Magistrate in respect of each town, area of a town or village;
(5) Wastage and shortage allowance at such rates as may be fixed by the District Magistrate but subject to a maximum of 12 1/2 per cent in the case of soft coke and 10 per cent in the case of steam coal and hard coke, as calculated on price;
(6) Profits the rate of 10 per cent as calculated on items (1) to (5) above,"
It is pointed out that while the coal agent can charge only (1) FOR colliery price actually paid, (ii) necessary tax, and (iii) handling charges as fixed by the State Govt., a retailer i.e. a coal depot holder can charge Railway freight from his buyers. Since Railway freight is not specifically mentioned in respect of the constituents of price to be charged by a coal agent, it is contended that a coal agent is prohibited from charging freight from a buyer. Reliance is placed on a decision of learned single Judge of this Court in Commissioner of Sales Tax v. Anil coal Corporation, 1987 (2) UPTC 1092 and Bhartiya Coal Traders v. State of U. P., UPTC 778 (sic). The learned single Judge observed as under :--
"So Clause 8(ii)(A) of the Order, 1977, clearly shows that the coal agent was debarred from selling coal at more than F.O.R. colliery price actually paid. The coal agent was prohibited by Order, 1977, to charge freight from the dealers. It is only Clause 8(iii)(c)(2) of the Order, 1977, which permits a coal depot holder to charge Railway freight."
11. The learned Counsel for the revisionist Sri Bharat Ji Agarwal when confronted, did not disclose any basis for the above observations made by the learned single Judge which are patently against the provisions of the Control Order. The price that a coal agent is authorised to charge, is the one fixed from time to time by the District Magistrate. In fixing the price, the District Magistrate has to include therein not only the F.O.R. colliery price but also the taxes and rates and the handling charges at such per metric tonne coal as may, from time to time be fixed by the State Govt. "Handling charges" is a term of wide import and would include all expenses incurred by a coal agent in lifting coal from the point of purchase to the point of bringing coal to his own premises. The mere fact that while speaking about the price to be charged by a retailer i.e. a coal depot holder, specific reference has been made to Railway freight does not mean that such freight, if incurred by a coal agent for bringing coal from outside the State of U.P. to its place of business, can be excluded from the components of price. Such an assumption is totally untenable because such a provision would be constitutionally invalid. No person can be forced to sell goods at below the cost price. Handling charge has not been defined in the Control Order and, therefore, there is no warrant for the contention that handling charges would not include the freight. The view taken by the learned single Judge is, therefore, patently against the statutory provisions contained in the Control Order and cannot be binding precedent.
12. As regards M/s. Bhartiya Coal Traders (supra), the Division Bench proceeded on the assumption that the dealer M/s. Bhartiya Coal Traders was merely acting as an agent. That was a case of transport of coal by Railway and the Division Bench was instructed that at no point of time, the ownership in coal is vested in the coal agent and that on the allotments of wagons, the Railway receipts are consigned to the District Magistrate A/C coal agent, and the bills were also raised in the name of the District Magistrate A/C coal agent. It was on these facts that it was held that the freight what was directly paid by the allottees could not be included in the turnover of the coal agent. The facts of the present case are different. The revisionists transported coal by motor trucks. It is not their case that the coal that was transported was not owned by them. In fact the very fact that they sold the goods, is a loud proclamation of the fact that they were the owners of the goods, otherwise as already observed there was no question of any sale by them and they could not be taxed even with regard to the price of coal excluding the truck hire.
13. The aforesaid Rule, therefore, cannot be used in support of the contention that the truck hire that is claimed to have been paid directly by the purchasers was not includible in the turnover of the revisionists.
14. It may be mentioned that the learned Standing Counsel contended that the Coal Control Order, 1977 was not applicable to steam coal and hard coal for industrial consumption. For this view, reliance was placed on Waseem Adil Khan v. State of U.P., 1993 (2) EFT 327 and Singh & Co. v. State, 1989 ALJ 987, in which it was held that the provisions of the aforesaid U.P. Control Order are not applicable to steam coal and hard coal for Industrial Consumption. No such point was raised at any stage of the proceedings and it is now too late for the Commissioner to set up this point which inter alia would require investigation of facts as to what was the type of coal dealt with by the revisionists and whether they worked under the licence in Form B or otherwise. The case of the revisionists was that they conducted their business under the authority of the licence in Form B and this was never controverted by the authorities below and it was never their case that they were conducting unregulated trade.
15. It is important to mention here that the revisionists in both the cases have assiduously kept back the relevant information from the Department and have not even established as a fact that the truck hire was actually paid by the buyers directly to the transporters.
16. In view of the above discussions, the Tribunal's judgment in holding that the expenditure on freight incurred for the import of coal from outside the State of U.P. to the place of business of the revisionists is includible in the turnover, is in accordance with law and is hereby sustained.
17. The next contention raised in these revision petitions is about the estimate of the turnover. The books of accounts have been rejected and no argument was addressed to me challenging the rejection of the books of accounts and the returned turnover. As a matter of fact, since the expenditure actually incurred for the import of coal and admittedly passed over to the buyers, was not included in the turnover, there was no escape from the rejection of the books of accounts and the returned turnover. As regards the estimate of the turnover, I would deal the matter yearwise.
18. For the assessment years 1990-91 (TTR No. 65/99) the Tribunal's order is dated 13-11-98 passed in Second Appeal No. 162/94. The dealer had returned a turnover of Rs. 13,76,247.24 p. as against purchases of Rs. 13,83,777/-. The sales recorded in the books of accounts showed a turnover of Rs. 13,89,312.61 p. and the difference when detected was explained to be due to a totalling mistake. In this year, 184 forms "C" were used, meaning, thereby that coal was imported in 184 trucks. The assessing officer estimated that each truck brought 18 M.T. of coal and, thus, the total coal imported was 3312 M.Ts. He estimated a turnover of Rs. 47,04,000/-. The Dy. Commissioner (Appeals) reduced the quantity of coal imported to 2737 M.T., which was the quantity declared by the assessee, and estimated the turnover at Rs. 18,27,00/-. On the Commissioner's appeal, the Tribunal estimated the quantity of coal at Rs. 3000/- M.T. and estimated the purchase price at Rs. 19,80,000/- and freight at Rs. 5,52,000/- and added thereto Rs. 8 lacs towards estimated loading and unloading charges and the profit. All these are matters of fact. So far as the estimate of the purchase price of the coal and the freight is concerned, though the same were claimed to be excessive by the learned Counsel, I do not find any ground for interfering with this finding of fact. However, as regards the addition of Rs. 8 lacs towards the loading and unloading, charges and profit, the same is patently arbitrary. Loading and unloading, charges of coal would be very nominal and the bulk of the addition is, therefore, for the profit only which is almost 30% of the cost. Such huge profit could not have been permitted by the District Magistrate who determines the price of the essential commodity in question i.e. coal. It is unfortunate and intriguing that the assessee at no stage of the proceedings, produced the orders of the District Magistrate fixing the price of the coal or the orders of the State Government fixing the handling charges nor did the assessing officer or any other authority took suo motu steps to enquire into that aspect of the matter. However, a reasonable profit can certainly be assumed and in view a reasonable estimate of the total turnover should be Rs. 27 lacs for assessment year 1990-91. Therefore, the Tribunal's order, referred to above, would stand modified to the effect that the dealer's turnover for this year will be determined at Rs. 27 lacs.
19. As regards the assessment year 1992-93 (TTR No. 36/99), the Tribunal's order is dated 13-11-98 passed on the dealer's Second Appeal No. 260/98. For this year, the dealer returned a turnover of Rs. 240,000.30 p. At the hearing, the turnover as per books of accounts came to be Rs. 2,92,661/-. This did not include the freight. The assessing officer estimated the turnover at Rs. 6 lacs. The Dy. Commissioner (Appeals) reduced the turnover to Rs. 4,40,000/- which has been upheld by the Tribunal. No illegality in making the aforesaid estimate has been pointed out and, therefore, the revision petition for this year deserves dismissal.
20. For assessment year 1993-94 (TTR 67 of (1999), the Tribunal's order is dated 13-11-98 passed in Second Appeal Nos. 225 of 1995 and 259 of 1998. For this year, the revisionist had declared purchases and sale of coal amounting to Rs. 4,775,113 M.T. The purchase price was disclosed at Rs. 38,11,493/- and the sale price at Rs. 38,35,493/-. The assessing officer estimated the turnover at Rs. 1,20,00,000/-. The Dy. Commissioner (Appeals) reduced the turnover to Rs. 58 lacs. On cross appeals by the dealer and the Commissioner, the dealer's appeal was dismissed while the Commissioner's Second Appeal No. 225/95 was allowed. The Tribunal estimated the turnover at Rs. 87 lacs by assuming the purchase price of coal at Rs. 50 lacs, expenditure on freight at Rs. 15 lacs and profit at Rs. 22 lacs. The net profit estimated by the Tribunal is, thus, about 33% of the cost of goods which is excessive and the Tribunal has given no basis for assuming such a high rate of profit in respect of an essential and controlled commodity. Since there is no cogent material from either side, a reasonable estimate should be made and looking to the extent of the business, it would be proper to estimate the profit at 10% of the cost that would give a profit of Rs. 5.5 lacs. Therefore, the total turnover for this year can reasonably be estimated at Rs. 71.50 lacs. The revision petition for assessment year 1993-94, will, therefore, stand partly allowed and the Tribunal's order will stand modified to the extent that the turnover of the dealer for this year would be estimated at Rs. 71.50 lacs.
21. Now we come to the last revision petition of this dealer i.e. TTR No. 68/99. That relates to assessment year 1994-95 and is directed against the Tribunal's order dated 13-11-98 passed in cross appeals No. 145/96 and 146/96.
22. For this year the dealer had declared purchases of coal for Rs. 35,51,693/- and the turnover at Rs. 36,88,471/-, thereby earning a gross profit of Rs. 36,778/- only. In this year 7353 M.T. of coal was imported and sold. On first appeal, the learned Dy. Commissioner (Appeals) reduced the turnover to Rs. 70 lacs. He estimated the purchase price of coal at Rs. 42 lacs, the freight at 21 lacs and the profit at Rs. 7 lacs. On the aforesaid second appeals, the Tribunal reduced the total turnover to Rs. 1.05 crores. It estimated the purchase price at Rs. 55 lacs, the freight at Rs. 24,47,500/- and rounded of the cost of the purchase to Rs. 79 lacs. Then it estimated the profit at 33% of the cost and arrived at a sum of Rs. 1.05 crores, as the total turnover.
23. Like the other years, the learned Counsel for the revisionists contended that the estimate of the purchase price and freight was excessive. While making an estimate, some arbitrariness is bound to occur but a dealer who keeps back relevant information, has to suffer it. It is only where the estimate is shown to be too off the mark to go beyond the best judgment assessment that some interference is necessitated. So far as the estimate of purchase price and freight is concerned, no such thing was pointed out. However, as stated earlier, in respect of other years, the estimate of profit crosses the limit of best judgment assessment and, therefore, has to be interfered with. I am of the view that looking to the large turnover to the years, a profit of around 8% would be reasonable and turnover may be estimated at Rs. 85 lacs. Therefore, allowing this revision petition partly, the Tribunal's order is modified to the effect that the dealer's turnover is estimated at Rs. 85 lacs.
24. In the result, while Revision Petition No. 66 of 1999 is dismissed, the Revision Petition Nos. 55, 57 and 58 of 1999 are partly allowed. The parties will bear their own costs.
25. As regards M/s. Pathak Coal Agency, the revisionist in TTR No. 63 of 1999, it used 575 form 31 and imported coal through 575 trucks. The matter relates to assessment year 1982-93. According to it, the total coal involved was 6993 M.T. i.e. on an average 12.51 M.T. per truck. The dealer had returned a turnover of Rs. 12,59,783/-. The duplicate copies of form 31 and the purchase vouchers were not produced during the assessment proceedings. No rokar khata was maintained and it was also stated that the returns were filed by estimate. The assessing officer, therefore, made a best judgment assessment. The assessing officer also mentioned that in one form 31, it was mentioned that 14.370 M.T. of coal was imported. He, therefore, estimated the turnover at Rs. 45 lacs without giving any bifurcation of details. On appeal, the Commissioner (Judl.) reduced the turnover to Rs. 33,20,635/-. The learned D.C. (Appeals) estimated that 15 M.T. coal was imported in each truck and thus the total import through 575 trucks was of 8625 M.T. of coal. He estimated the purchase price at Rs. 350/- per. tonne to arrive at a figure of Rs. 30,18,750/-. He estimated a profit of 10% thereon and arrived at a turnover Rs. 33,20,625/-. On Second Appeal Nos. 919/90 and 1069/90 preferred by the dealer and the Commissioner, respectively, the Tribunal dismissed them by the impugned order dated 30th October, 1998. The main contention of the learned Counsel Sri Alok Kumar regarding the estimate of the turnover was that there was no warrant for assuming that 15 tonnes of coal was imported in each truck and, therefore, the quantity of coal as shown by the dealer should have been accepted.
26. The only reason given by the authorities below is that in one truck 14.37 tonnes of coal was imported and that certain other dealers had been importing more coal per truck. This dealer too is a licensee in form 8 and had used as many as 575 form 31, counterfoils of some of which were available. One of the foils of form 31 is produced at the check-post and is retained there which should in the normal course be transmitted to the assessing officer. In any case, the assessing officer could procure the same from the concerned entry check post. No such attempt was made. The mere fact that some other dealers were importing more coal per truck or the mere fact that in one particular truck, the assessee had imported more coal did not mean that the quantity of coal was understated. It is not the revenue's case that in the books of accounts of the dealer, the quantity of 14.370 M.T. was not stated and some other lower figure was mentioned. There are different types of trucks and every transporter and dealer has his own way of working. It is not also the case of the revenue that any truck carrying the goods of the revisionist was checked at the entry check post and was found to contain more quantity of coal than mentioned in form 31 or in the other papers accompanying the consignment. In my view, therefore, so far as the estimate of the quantity of coal traded by the dealer is concerned, the estimate made by the assessing officer and the learned Dy. Commissioner (Appeals) was totally arbitrary. Therefore, the dealer's turnover for this year should have been estimated by accepting the quantity of coal sold to be 6993 M.T. The estimate of the sale price at Rs. 350/- per tonne is not shown to suffer from any illegality. Therefore, the turnover of the dealer for this year should have been determined at Rs. 24,47,550/-.
27. This revision petition is, therefore, partly allowed and setting aside the Tribunal's order on the dealer's Second Appeal No. 919 of 1990, it is ordered that the said appeal shall stand partly allowed and the dealer turnover for assessment year 1982-83 is reduced to Rs. 24,47,550/-. In this case also, the parties will bear their own costs.