This revision has been filed by the assessee under section 11 of the U.P. Trade Tax Act for the assessment year 1998- 99 against the order of Tribunal dated 5.9.2006.
The questions of law referred are as under:
"(i) Whether the Tribunal as well as the authorities below were justified in drawing adverse inference against the applicant on the basis of survey conducted on 21.7.1998 in which no adverse material was found?
(ii) Whether absence of any query being made with regard to Zinc Scrape and Tanka, still adverse view can be drawn that the applicant has failed to tell about the same.
(iii) Whether entry being in the books of account and no discrepency has been pointed out, still the adverse view can be taken?
(iv) Whether the items mentioned inn books of account, but not mentioned in the survey report and in absence of any specific query being made, still adverse view can be drawn?
(v) Whether the applicant is maintaining four cash memos at the time and entries of the same are duly recorded in its regular books of account and no discrepancy whatsoever has been pointed out, still adverse view can be legally drawn against the applicant?
(vi) Whether the applicant had filed monthly return of April, May and June, 1998 and had shown all sales made through four cash memos, still neither provisional assessment were made nor any adverse view has been drawn against the applicant?
(vii) Whether in view of the facts and circumstances of the case, the authorities were justified in fixing the tax liability at Rs.1,32,801/-?
(viii) Whether in view of facts and circumstances of the case, the order passed by the Tribunal is justified?"
I have heard learned counsel for both the parties. From the perusal of the orders passed by the authorities below, one fact is not to be denied i.e. that although the stock of the assessee at the time of survey were found to be less, entries in his account books were shown to be greater. This in itself may be indicative of the fact that the assessee was not guilty of suppression of any sale of goods or having any intend to escape any tax. The authorities below have drawn presumption against the assessee on the basis of that he had four cash books and therefore he must have made suppress sales.
In view of the fact that the entries are greater in the account books than the goods shown in the stock register, the matter requires reconsideration. The matter is remanded to the assessing authority to re-examine the matter and pass a fresh orders. The assessee may be given an opportunity of hearing. The matter on remand will be decided within a period of three months from the date of production of a certified copy of this order being placed before the assessing authority within three weeks from today. The orders of tribunal and the lower authorities are set aside.
The revision is disposed of as above. No costs.
Order Date :- 18.1.2010 rk