Court No. - 7
Case :- SALES/TRADE TAX REVISION No. - 149 of 2018 Applicant :- M/S Roma Builder And Promoters Pvt. (L) Opposite Party :- The Commissioner Commercial Tax, U.P. Counsel for Applicant :- Vivek Pratap Singh,Shweta Singh Rana Counsel for Opposite Party :- C.S.C.
Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Vivek Pratap Singh, learned counsel for the applicant and Sri B.K. Pandey, learned standing counsel for the respondent.
Revision is admitted on the following questions of law:
1. Whether the tribunal was legally justified in increasing 15 percentages as profit/freight charges to the total taxable turnover of sale of goods under rule 9(1)(d) of the U.P. VAT Rule, 2008 when the applicant fulfilled all the condition provided under Rule was liable to pay or not.
2. Whether if the assessee fulfilled all the condition provided under rule 9(1) U.P. VAT Rule, 2008 is to be assessed and entitled for the deduction provided under clause (a) to (1) of the said rule or not.
3. Whether the tribunal and first appellate authority by allowing increase of the 15 percentages to the total taxable turnover on assumption basis is ultravires to the provisions of the U.P. VAT ACT, 2008 or not.
Briefly stated facts of the present case are that the revisionist is engaged in construction and sale of flats. Assessment Year 2013-14 is the first year of business. In this Assessment year on 18.2.2014, a survey of the construction site at Panchavati, Ramnagar, District- Varanasi was conducted by the Special Investigation Branch in which work in progress was found. On the basis of material found in the survey, a show cause notice, during assessment proceedings; for the Assessment Year 2013-14 was issued to the revisionist. Revisionist submitted detail reply and also produced the entire books of accounts and other records. The Assessing Authority found that the explanation submitted by the revisionist is not satisfactory. Accordingly, he created a tax demand of Rs.31,83,777/- by Assessment Order dated 30.3.2016. Aggrieved with this Assessment Order the revisionist filed an appeal No.VAR2/1346/2016 before the Additional Commissioner Grade -II (Appeal)- 2, Commercial Tax, Judicial Zone - II, Varanasi which was partly allowed by order dated 28.7.2017, and the disputed tax was reduced by Rs.30,28,072/-. Still aggrieved, the revisionist-assessee preferred a Second Appeal No.171 of 2017, before the Member Commercial Tax Tribunal Varanasi Bench (3), Varanasi which has been dismissed by the impugned order dated 24.2.2018. The only dispute raised before the Tribunal and in the present revision is as to whether it was justified to make value addition of 15% in the turnover disclosed by the revisionist-assessee.
Learned counsel for the revisionist submits that the First Appellate Authority and the Tribunal have found that books of accounts have been maintained properly which contain complete details and the Assessment of the assessee is to be made under Rule 9(1) of the U.P. VAT Rule, 2008. Despite this finding, the Tribunal has upheld the value addition of 15% invoking Rule 9(3) of the Rules. Therefore, the order of the Tribunal is self contradictory and it deserves to be set aside.
Learned standing counsel supports the impugned order.
I have carefully considered the submissions of learned counsel for the parties and perused the record.
In the impugned order the Tribunal has recorded a finding of fact that all particulars are well recorded in the books of accounts of the revisionist- assessee and, therefore, the assessment as made by the First Appellate Authority Rule 9(1) of the U.P. VAT Rules, is correct. The Tribunal has also found that the books of accounts and other records have been maintained by the assesee in which no discrepancy has been found. Once the Tribunal has recorded the findings as aforesaid, it appears that it was not justified for the Tribunal to uphold the value addition of 15% on assumption basis. The correct figure could have been easily arrived at by the Tribunal when the books of accounts were produced before it.
Under the circumstances, I find that the impugned order of the Tribunal in so far as it relates to Second Appeal no.171 of 2017, can not be sustained and is hereby set aside. Matter is remitted back to the Tribunal to pass an order afresh in accordance with law. The Second Appeal No.171 of 2017 is restored to its original number.
Revision is disposed of.
Order Date :- 28.5.2018/vkg