Court No. - 59
Case :- SALES/TRADE TAX REVISION No. - 1153 of 2009 Revisionist :- M/S Prabhat Sun Pipes Opposite Party :- Commissioner Commercial Tax Counsel for Revisionist :- Krishna Agarwal Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. Present revision has been filed by the assessee against the order of the Commercial Tax Tribunal, Gorakhpur dated 28.08.2009 passed in Second Appeal No. 39 of 2009 for A.Y. 2004-05 (U.P.). By that order, the Tribunal has dismissed the appeal filed by the assessee as also the revenue and thus confirmed the first appeal order.
2. During A.Y. 2004-05, the assessee was engaged in manufacture and sale of hume pipes. Undisputedly, it was subjected to survey proceedings on two dates being 20.12.2004 and 30.01.2005. In neither survey, the assessee could produce its books of accounts. Though, the assessing officer considered both the surveys to be adverse to the assessee, the appeal authorities have considered the survey dated 20.12.2004 to be adverse. In that regard, besides absence of stock and other registers, steel wire and wire rods (raw materials) were taken note of. Against the turnover of Rs. 19,22,393/- disclosed by the assessee, the assessing officer estimated the same at Rs. 58,04,393/-. Upon appeal, the first appeal authority reduced the same to Rs. 33,02,400/-. Accordingly, against the admitted tax liability of Rs. 1,07,404/-, the assessing officer determined the same at Rs. 4,36,554/-, whereas the first appeal authority reduced the same to Rs. 2,00,360/-. The same has been sustained by the Tribunal.
3. The present revision has been pressed on the following two questions of law:
"(i) Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in treating the surveys dated 20.12.2004 and 30.01.2005 as adverse while nothing adverse has been found at the time of survey and the stock at a higher amount has already been shown in the books of account/stock register of the applicant?
(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in determining the tax and turnover at such an excessive rate?"
4. Heard Shri Krishna Agarwal, learned counsel for the assessee and Shri B.K. Pandey, learned Standing Counsel for the revenue.
5. Having heard learned counsel for the parties and having perused the record, in the first place, it is undisputed that the assessee is a manufacturer and that its books of accounts were not produced at the time of two surveys dated 20.12.2004 and 30.01.2005. The fact that the assessee may have thereafter produced the books of accounts in the course of assessment proceedings or even before the Special Investigation Branch (in short 'SIB'), cannot be accepted, inasmuch as the books of accounts that may be produced much later in the assessment proceedings would never be relevant for the purpose of their acceptance in absence of any exceptional circumstance proven by the assessee. No such circumstance has been claimed in the present case.
6. As to the production of the books of accounts before the SIB, though, certain documents have been referred by the learned counsel for the assessee, the same are undated. Also, from the perusal of the orders on record, it does not appear that the assessee had produced its books of accounts before the SIB at the earliest possible, upon conclusion of the surveys dated 20.12.2004 and 30.01.2005. It is, therefore, to be presumed that the books were not produced before the SIB soon upon completion of the survey. Accordingly, no benefit can be claimed of such books. The finding of rejection of books of accounts cannot be faulted.
7. Insofar as the estimation of the turnover is concerned, while the learned counsel for the assessee has tried to make out a case of exaggerated estimation made by the assessing authority as sustained by the appeal authorities, however, the estimation of the turnover remains a question of fact. Certain guess work is necessarily involved in such work. The fact that the assessee is a manufacturer and that its books of accounts were not produced during the course of the two survey proceedings and the further fact that certain substantial stock of steel wire and wire rods weighing about 10700 kg had been detected during the survey dated 20.12.2004, it did disclose substantial manufacturing activity by the assessee. Thus, the estimation of the turnover at Rs. 33,02,400/- which is less than twice the disclosed turnover by the assessee, does not appear to be exaggerated or unfounded.
8. The further submission advanced by learned counsel for the assessee that the stock found was less than the stock recorded in the books or that certain stock lying in the room that too under lock and key had not been properly accounted for, may not make any difference, in view of the fact that the finding appears to have been made otherwise on fair and proper estimation. These issues, even if be of some relevance in making assessment, may not be decisive in revision jurisdiction where the finding of fact, when found recorded on the basis of material, as has been done in the present case, do not call for any interference.
9. The revision lacks merit and is accordingly dismissed.
Order Date :- 27.9.2019 AHA