Court No. - 59
Case :- SALES/TRADE TAX REVISION No. - 383 of 2013 Revisionist :- S/S Daya Shankar Tripathi Opposite Party :- The Commissioner Commercial Tax Counsel for Revisionist :- Krishna Agrawal Counsel for Opposite Party :- C.S.C.
Hon'ble Manoj Kumar Gupta,J.
The instant revision is directed against the order of the Commissioner Tax Tribunal dated 2.1.2013, whereby the appeal filed by the assessee has been allowed in part.
The applicant-assessee is engaged in business of mining and sale of sand. For assessment year 2004-05, he disclosed the sales at Rs.4,18,680/- and tax liability at Rs.33,494/-. The total sand excavated was 83736 cubic meter. The sale value per cubic meter disclosed by the applicant was Rs.5/-. The Assessing Authority vide order dated 28.1.2008 enhanced the sale turn over to Rs.25,12,080/- and imposed a tax of Rs.2,00,666.40/-. The Assessing Authority took into consideration the fact that the revisionist had paid Rs.3,01,000/- as royalty during the year under consideration. It has taken note of various instances of other assessees like Vidya Devi R/o Ram Nagar, Manjhanpur, Kuashambi and Gulab Devi W/o Shiv Sampat, Mahoba regarding sale of sand at the rate of Rs.20/- per cubic meter during the year 2002-03. It has also noted that the royalty fixed in other cases where lumpsum amount is not payable was Rs.15/- per cubic meter. Consequently, the sale price of Rs.5/- per cubic meter disclosed by the applicant in his accounts book was held to be undervalued. The Assessing Authority has held that after payment of royalty at the rate of Rs.15/- per cubic meter and other expenses, the sale value could not be less than Rs.30/- per cubic meter and accordingly, proceeded to make the assessment.
The First Appellate Authority concurred with the view taken by the Assessing Authority. However, when the matter was carried in second appeal, the Tribunal reduced the sale price from Rs.30/- per cubic meter to Rs.20/- per cubic meter.
The revision was admitted on the sole question as to whether the estimation of sale price done by the authorities was proper in the facts of the instant case.
Learned counsel for the revisionist submitted that there was no evidence to discard the sale value disclosed by the applicant in his books of account, nor there was any material to assess the value at Rs.20/- per cubic meter, as done by the Tribunal. It is urged that there being no dispute that Rs.3,01,000/- was total sum paid as royalty, it would come to Rs.3/- per cubic meter, whereas the order of the Tribunal proceeds on the assumption that the royalty to be paid to the State Government was a much higher amount.
There is no dispute about the quantity of the sand excavated, which was 83736 cubic meter. The applicant had calculated the sale turn over by stating that the sand was sold at the rate of Rs.5/- per cubic meter. The Assessing Authority had referred to various exemplars of previous years relating to other assessees where the sale value was determined as Rs.20/- per cubic meter. Although the revisionist is not bound by the said exemplars but it definitely constitutes an important piece of evidence to assess whether the sale value was suppressed to evade taxes. Moreover, the applicant, even as per his own admission, had paid Rs.3/- per cubic meter as royalty. His contention that the cartage and other expenses were borne by the purchaser has not been believed, being contrary to the practice prevalent in the trade. The Assessing Officer had sufficient material to disbelieve the sale turn over disclosed by the applicant and was justified in proceeding to make best judgment assessment.
The Assessing Authority has assessed the value of sand at Rs.30/- per cubic meter on the assumption that at the relevant time, royalty was payable at the rate of Rs.15/- per cubic meter. The Tribunal has reduced the sale turn over by assessing the value of sand at around Rs.20/- per cubic meter. However, as noted above, only Rs.3,01,000/- was paid as royalty during the year under consideration which, according to the calculation given by the assessee and not disputed by the Revenue, comes to Rs.3/- per cubic meter. After adding cost of excavation, cartage etc. and profit, still the estimation of the sale price at Rs.20/- per cubic meter appears to be on a much higher side and, therefore, cannot be sustained. The impugned order dated 2.1.2013 is hereby quashed.
In the result, the revision is allowed. The matter is remitted back to the Tribunal to pass a fresh order re-determining the sale turn over on basis of proper estimation of the price of sand during the year under consideration expeditiously, preferably within a period of three months from the date of receipt of a certified copy of this order.
(Manoj Kumar Gupta, J) Order Date :- 19.12.2019 SL