ORDER Prakash Krishna, J.
1. These three revisions arise out of a common order passed by the Trade Tax Tribunal in three connected appeals Nos. 304 of 1992 (assessment year 1984-85), 305 of 1992 (Assessment year 1985-86) and 306 of 1992 (assessment year 1986-87).
The applicant is a dealer of timber. For the assessment year 1984-85 original assessment order was passed on November 7, 1988. The account books were rejected and the gross turnover was fixed at Rs. 58,562 and the taxable turnover was fixed at Rs. 29,000. In the assessment year 1985-86 the contention of the assessee was accepted and was declared non-taxable by the order dated December 28,1989. For the assessment year 1986-87 in the original assessment proceedings the net turnover was fixed at Rs. 80,000 by the order dated October 24, 1989.
2. Subsequently the department initiated the assessment proceedings for two assessment years, namely, 1984-85 and 1985-86 on the basis of information received that the applicant has imported timber against three forms XXXI detailed as follows:
3. In the reassessment proceedings the explanation given by the assessee that although the aforesaid forms XXXI were issued but the delivery of goods was taken in the assessment year 1986-87 and therefore there was no material to show that the turnover of the dealer has escaped the assessment for the assessment years 1984-85 and 1985-86. This contention was not accepted by the assessing officer.
4. Indisputably the applicant belongs to Sikh community. Due to the riot on account of assassination of the then Prime Minister Smt. Indira Nehru Gandhi in the month of October, 1984, the shops of the Sikh Community including that of the assessee were destroyed by fire. These facts have been noticed by the authorities below including the Tribunal in their respective proceedings.
5. Heard Shri Shashi Kant Gupta, the learned Counsel for the applicant and the Learned Standing Counsel for the Department. It was submitted by Shri Gupta that looking to the fact that the shop of the applicant was destroyed during the communal riot and looking to the fact the import figure of timber, the turnover fixed by the authorities below is excessive and arbitrary. As far as the assessment year 1984-85 is concerned the information is that the applicant has imported timber through form XXXI dated January 30,1985 amounting to Rs. 17,160. Timber is taxable at the point of importer or sale by the forest department. In the original assessment proceeding the dealer disclosed net taxable sale as nil. Against this in the original assessment proceeding the turnover was fixed at Rs. 39,000 by the order dated November 7, 1988. The necessary corollary is that the department had already taken into account the suppressed turnover of the dealer-applicant by passing the assessment order. Looking to the information of import of timber amounting to Rs. 17,160 in my view no further enhancement could have been made in proceedings under Section 21 of the Act. The said information have been taken care of while determining net turnover at Rs. 39,000 as against the disclosed turnover at nil. Therefore, the order of the Tribunal for the assessment year 1985-86 fixing the turnover at Rs. 80,000 as fixed by the first appellate authority and confirmed by the Tribunal cannot be sustained. A copy of the original assessment order for the year 1984-85 was produced during the course of argument. A perusal of this order disclosed that the stand of dealer was that five forms XXXI obtained by him from the department either have been lost or they have been burnt down in the riot. It is also mentioned in the assessment order that the applicant is dealing in import of timber. Taking into consideration all these facts in the original assessment order, in the absence of account books the turnover of imported timber was fixed at Rs. 30,000. Taking into consideration the entire facts and circumstances of the case as well as the fact that there was a riot at Kanpur and the shop of the applicant was burnt being member of Sikh Community, the order of the Tribunal under Section 21 of the Act for the assessment year 1984-85 cannot be sustained.
6. For the assessment year 1985-86 as against the information with the department that the applicant has imported timber to the tune of about Rs. 40,000 the Tribunal has fixed the turnover in the reassessment proceedings at Rs. 90,000 on the basis of the assessment of the previous year. Since the reassessment order of the previous year has been set aside by me, I think in the interest of justice and taking a lenient view in the matter the turnover of imported timber should be fixed at Rs. 70,000. The order of the Tribunal is modified to that extent. For the assessment year 1986-871 do not find any error in the order of the Tribunal. The revision so far as to the year 1986-87 is concerned stand dismissed.
7. The T.T.R. No. 38 of 1997 is allowed. The T.T.R. No. 14 of 1997 is allowed in part as indicated above. The T.T.R. No. 15 of 1997 is dismissed.