Court No. - 7
Case :- SALES/TRADE TAX REVISION No. - 897 of 2006 Applicant :- The Kisan Sahakari Chini Mills Ltd.
Opposite Party :- Commissioner Of Trade Tax U.P. Lucknow Counsel for Applicant :- Shakeel Ahmad Counsel for Opposite Party :- S.C.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Shakeel Ahmad, learned counsel for the applicant and Sri B.K. Pandey, learned Standing Counsel for the revenue. The present revision has been pressed on the following questions of law:-
(i) Whether upon the facts and circumstances of the case the Tribunal was justified in disbelieving the report of the excise department that the stock of Sheera in 8 raw pits is nil without any cogent reasoning.
(ii) Whether on the facts and circumstances of the case the Tribunal was justified by giving the finding that the applicant has sold out the Sheera in earlier year and the applicant has sold the new Sheera outside the books of accounts in the present case.
2. The present revision has been filed by the assessee- The Kisan Sahkari Chini Mills Cooperative Society, Pooranpur, District-Pilibhit for the assessment year 1992- 1993 (U.P).
3. Learned counsel for the assessee submits that the assessee is engaged in the manufacturer of sugar from sugarcane juice which it obtains from sugarcane. Molasses is a by-product of sugar and is obtained in that process. During the year in question, the assessee had available eight open pits and also other metal tanks for storage of molasses. Certain quantities of molasses stored in open pits were lost owing to poor storage condition in open pits.
4. In such circumstances, it has been submitted that the assessing authority and the appellate authority have erred in rejecting the application submitted by the assessee in this regard, and the Tribunal has upheld the enhancement of tax liability on presumption and conjectures. He would submit that merely because the assessee had sold quantities of molasses from the metal storage tanks, it could not be presumed that the molasses stored in the open pits had been otherwise sold out of books. Also in this regard, it has been submitted that the Tribunal has upheld the enhancement of tax liability on mere possibilities that the assessee might have sold quantities of molasses outside his books of account, in absence of any evidence to that effect.
5. Sri B.K. Pandey, learned Senior Counsel for revenue on the other hand submitted that the questions raised by the assessee are questions of fact and therefore, the revision may be dismissed.
6. Having considered the arguments advanced by the learned counsel for parties and having perused the record, it is seen that though the Assessing Authority noted that the assessee had disclosed having sold quantities of molasses from metal tanks but not from the open tanks, at the same time that fact itself could not have led to determination of the tax liability on the assessee. For that purpose there ought to have existed some cogent material or evidence of sales made outside books or other evidence to falsify the claim of loss of molasses. The order of the Tribunal only states that there was no logical reason or justification for the assessee to have sold only the molasses stored in metal tanks and not from that stored in open pits. Thus there exists only a finding as to the possibility of concealed sale of molasses. There is no material or evidence that any quantity of molasses had been sold by the assessee outside the books of accounts, though molasses as a commodity is subject to payment of excise duty and no fact has been noted of any evasion detected by the excise authorities.
7. The matter is also very old being of the year 1992- 1993, and further the assessee is a cooperative society. For such circumstances, no useful purpose would be served in now remitting the matter to the Tribunal to decide the matter afresh. Consequently in the peculiar facts of the present case, the questions of law (i) and (ii) are answered in the negative that is against the revenue and in favour of the assessee.
8. Accordingly, the writ petition is allowed.
Order Date :- 19.12.2018 S.Chaurasia