Present revision is filed by the revisionist challenging the judgment and order dated 28.4.2009 passed by the Trade Tax Tribunal, Bench-3, Lucknow whereby the Appeal No.169 of 2006 filed by the revisionist for the Assessment Year 2002-2003, has been rejected.
The facts of the case are that a survey of the firm of revisionist was conducted on 30.1.2003 and at that time the relevant books of account were not available and could not be shown. At the time of assessment, the revisionist produced the books of account. It was found that at the relevant date, he had not entered 7 sacks of paddy and one sack of wheat in the books of account. At the relevant date, the owner of firm took all the books of account to the Trade Tax Office for verification purpose and hence he could not produce the same at the time of survey. The said explanation of the revisionist was rejected by the authority as well as by the appellate authority.
There is no reason given while rejecting the explanation of the revisionist. Learned counsel for revisionist has relied upon para-8 and 9 of the judgment in the case of M/s. Sardar Mini Rice Mill Harchandpur Raebareli. Vs. Commissioner, Trade Tax, U.P., Lucknow, [VSTI 2011 (Vol.11) B-717], which read as follows:-
"8. From the survey diary (Annexure No. 9-A), it appears that on the day of survey, the books of account were not available at the business premises of the assessee. The owner of the firm Sri Manjeet Singh had gone out of station. The stock was noted down on separate sheet pertaining to rice and paddy. In the absence of the books of account, it was not verified but the fact remains that, at a later stage, the books of account produced by the assessee were not accepted by the A.O. and the same were rejected without assigning any reason. In the case of Ashoka Enterprises v. Commissioner of Sales Tax, 1984 UPTC-854 Allahabad, it was observed that the failure of the assessee to show the books at the time of survey will not warrant rejection of the books. The position may be different in the cases where mala fide of the assessee is established in not showing the books at the time of survey, then surely an adverse inference will be drawn against the assessee, but not in the other case where the books could not be shown at the time of survey for good reasons.
9. Further, in the case of Devi Lal & Sons v. Commissioner of Sales Tax, 1984, UPTC-1073, Allahabad, it was observed that the books cannot be rejected merely for the reason that on first survey, the Rokar and Khata could not be made available. The case of the assessee was that the part time Munim had taken the Khata and cash book to post the latter in the ledger. Mere fact that the Khata and Rokar were not available at the shop at the time of first survey, is no ground to reject the books, though the revenue, if any other defect is found in the books, can certainly draw adverse inference against the assessee."
A bare perusal of the aforesaid judgment shows that unless the authority comes to the conclusion that at the time of survey non-production of books of account is mala fide, the authority cannot refuse the matter at the time of assessment. In the present case, there is no finding that the non-production of books of account at the time of survey by the revisionist was mala fide. Therefore, the impugned order cannot stand and is liable to be rejected.
The revision is allowed. The impugned judgment and order dated 28.4.2009 is set aside. Consequence to follow.
Order Date :- 31.7.2019 Rajneesh DR-PS) (Vivek Chaudhary, J.)