JUDGMENT Prakash Krishna, J.
1. These two revisions are directed against a common order of the Trade Tax Tribunal dated 16th October, 1995. The Tribunal has dismissed second appeal no. 34 of 1991, and 35 of 1991, filed by the dealer/opposite party. It has partly allowed second appeal no. 79 of 1991 and second appeal no. 805 of 1991 filed by the department.
2. The applicant is a registered dealer under U.P. Trade Tax Act and is carrying on the business of manufacturing and selling locks. These two revisions relate to the assessment year 1985-86 U.P. and Central. The Assistant Commissioner (Assessment) after rejecting the account books, estimated the taxable sale in U.P. at Rs. 35 lacs as against the disclosed taxable sale at Rs. 29,509,911/- The central sales was estimated at Rs. 68 lacs as against the disclosed sale at Rs. 58,06968/- These assessment orders were challenged by the applicant in appeal before the Deputy Commissioner (Appeals). The Deputy Commissioner of (Appeals) estimated the taxable turnover in U.P. at Rs. 32,08000/-, it accepted the disclosed the turnover under Central Sales Tax Act and allowed the appeal in toto. Appeals and cross appeals were filed before the Tribunal by the impugned order has decided all the appeals together. The Tribunal has partly allowed the appeal filed by the department so far it relates to the central sales. It allowed the appeal in toto of the department, so far as it relates to sales in U.P. is concerned. Aggrieved against the aforesaid orders of the Tribunal only assessee has preferred the aforesaid two revisions under Section 11 of U.P. Trade Tax Act.
3. Heard learned counsel for the parties and perused the record.
4. The account books were rejected by the authorities below on the basis of the facts found at the time of enquiry conducted on 5.12.1985 wherein it was found that the dealer/applicant despatched 764 locks from Aligarh to Lucknow. The said goods were intercepted and on physical verification it was found that instead of 764 locks as mentioned in the bill accompanying the locks there were actually 1528 locks in the consignment. This was just double of the locks which were being transported. The transporter got the goods released after furnishing security. No attempt was made by the dealer/applicant to explain the aforesaid discrepancy. The Tribunal has noticed the fact that the applicant did not file even an application under Section 13-A (6) of the Act and gladly got the goods released after furnishing security through transporter. During course of assessment proceedings an attempt was made to explain the aforesaid discrepancy. The said explanation has not been accepted by the any of the authorities below. The Tribunal after taking into consideration the facts and circumstances of the case has come to the conclusion that the excess goods were being sold out side books of account in a deceitful and pre-planned manner to evade the payment of tax. The learned counsel for the applicant made a feeble attempt to challenge the aforesaid finding of the Tribunal. The whole emphasis of the learned counsel for the applicant in the present revisions is for the reduction of the turnover in U.P. He submitted that the value of the excess goods has been estimated at Rs. 11292/-, looking to the value of the suppressed turnover as found in the aforesaid enquiry, the addition made in the turnover of U.P. sales is arbitrary and has no nexus. It was also submitted that there is no material on record to show any suppression of central sales and as such no addition in the central sales can justifiably be made. The rejection of account books for U.P. turnover is not sufficient for reduction of central sales. In contra the learned Standing Counsel has supported the order of the Tribunal and submitted that the dealer/applicant was maintaining one set of account books as noted by the Tribunal and not disputed by the learned counsel for the applicant, the rejection of the account books for U.P. and Central is perfectly justified. The question of determination of turnover is basically a question of fact and this Court should not interfere with the finding of fact recorded by the Tribunal in exercise of revisional jurisdiction under Section 11 of the Act.
5. The facts as found in the enquiry dated 5.12.1985 in my opinion is sufficient for rejection of the account books. The learned counsel for the applicant did not seriously press about acceptance of account books. The Tribunal has found as a fact that the applicant had acquired the knowledge of the enquiry dated 5.12.1985 and got the goods released after furnishing security through transporter. This clearly belies the dealer's contention that there was no mala fide intention on its part in sending the excess goods under the aforesaid consignment. The Tribunal has also noticed the fact that on the very next day i.e. on 6.12.1985, the applicant authorized Sri Ashok Kumar to get the goods released through a letter addressed to mobile squad.
6. TTR No. 185 of 1996 relates to the assessment of the turnover in U.P. The disclosed turnover in U.P. is Rs. 29,88,000/- which was assessed to Rs. 35 lacs by the assessing authority and was reduced to Rs. 32,08000.00 by the Deputy Commissioner (Appeals) The Tribunal has restored back the assessment order by allowing the appeal of the department. The learned counsel for the applicant has placed reliance upon the two judgments of this Court, namely Commissioner of Trade Tax v. S/S Agrawal Oil Mills 1999 UPTC 1250 and Vijai Paper Mart v. CIT 1999 UPTC 1306 and contended that the enhancement should be commensurate to suppression and turnover should not be enhanced or reduced arbitrarily. In the case of CTT v. Agrawal Oil Mills, this Court set aside the orders of the first appellate authority, as well as of the Tribunal on the ground that after narrating the facts and affirming the reduction of the books of accounts these two authorities have simply reduced the taxable turnover, which highly excessive in their opinion. They have not at all discussed the fact of the lose papers from which adverse inference were drawn. In the case of Vijai Paper Mart (supra) this Court reduced the turnover fixed by the Tribunal as it was of the opinion that the enhancement in the suppressed and it should not be enhanced or reduced arbitrarily. Coming to the facts of the present case, I find in para 14 of the order of the Deputy Commissioner (Appeals) has taken into consideration a number of facts and circumstances to justify the reduction in the turnover as fixed by him. He has noted that on the same day another consignment with regard to the Challan No. 1251, GR No. 2709 was also inspected. No error or defect was found by the mobile squad with respect to this consignment. It has also taken into account that the about 14 transporters filed the certificate certifying that STO Mobile Squad and other officials of the department inspected and checked the variuos other consignments of the dealer/applicant, but no defect or error was ever found. The past history of the dealer is clean and its account books have been accepted for the previous years as well as in the subsequent years. All these facts were not taken into consideration by the Tribunal while deciding the appeals. Keeping in mind that the account books of the dealer have always has been accepted and suppression of Rs. 11,292/- was found in one transaction, there being no other adverse material against the dealer applicant, the Tribunal has erred in interfering with the order of the Deputy Commissioner (Appeals). The Tribunal has not given any basis for restoring the assessment order except that in its opinion the turnover fixed by the Deputy Commissioner (Appeals) was towards lower side. The Deputy Commissioner (Appeals) has given a number of reasons as noted above but the Tribunal has failed to take them into account in its order. In this view of the matter, the order of the Tribunal, so far as it relates to the fixation of turnover in U.P. is concerned, can not be sustained, it is vitiated as it has failed to take into account the relevant facts and circumstances while fixing the turnover.
7. TTR No. 186 of 1996 relates to the Central sales. The Deputy Commissioner (Appeals) set aside the enhancement made by the assessing authority under Central Sales only on one ground. It took the view that the rejection of the account books in U.P. is not sufficient to presume the suppression of the turnover in the Central sales also. The Tribunal has disagreed and in my opinion rightly so, in view of the following pronouncement of this Court.
8. The Division Bench of this Court in the case of SCL Varshney & Sons v. CST 1970 UPTC 309 has held as follows:-
"The assessee was carrying on the business of buying and selling papers both in U.P. as well as outside the U.P. He had disclosed the sales of both the kinds, in our opinion, when the assess was found to have suppressed sales in U.P. a presumption could be raised that he had made similar suppression in inter State sales."
9. The rejection of the account books of the dealer in U.P. as held by this court in the case of Renu Industries v. CST 1982 UPTC 297 could legitimately permit assumption that concealed inter State sales of this nature may have been made by the dealer. Following the aforesaid decision of this Court in the case of SGL Varshney and Sons this Court rejected the contention of the assessee that in the absence of specific suppression in regard to the inter State sales, the addition in inter State sales is erroneous in ( Thakur Refractionaries v. CST 1986 U.P.T.C. 20).
10. Admittedly the applicant has been maintaining one set of the account books with regard to sales in U.P. and inter State sales. The rejection of account books with regard to sales in U.P. is sufficient to discard the inter State sales. In view of the above discussion, the Tribunal was legally justified to interfere with the order of the Deputy Commissioner (Appeals) and has rightly rejected the disclosed inter State sales. The learned counsel could not point out any material to show that the estimated inter State sale has no nexus with the material found against the dealer/applicant. The Tribunal after setting aside the order of the first appellate authority has given some relief by reducing the inter State sale as fixed by the assessing authority.
11. In the result, there is no merit in T.T.R. No. 186 of 1996.
12. In view of above, TTR No. 185 of 1996 is allowed and the order of the Tribunal is set aside and the order of the first appellate authority so far as it relates to the provincial sales is concerned, is restored back. TTR No. 186 of 1986 is dismissed.
13. No order as to costs.