Court No. - 59
Case :- SALES/TRADE TAX REVISION No. - 888 of 2007 Applicant :- M/S Yadav Int Bhatha Opposite Party :- The Commissioner, Trade Tax U.P. Lucknow Counsel for Applicant :- Aloke Kumar Counsel for Opposite Party :- S.C.
Hon'ble Yashwant Varma,J.
Heard Mr. Aloke Kumar, learned counsel for the revisionist and Sri A.C. Tripathi, learned Standing Counsel.
This revision is directed against an order of the Tribunal which has affirmed a best judgment assessment undertaken against the assessee. The assessee was operating a brick kiln and was engaged in the manufacture and sale of the bricks. During the course of a survey of its business premises on 22 June 1995, it was found that no books of account or records had been maintained. Admittedly, no books of account were produced before either the Assessing Authority or even before the First Appellate Authority nor before the Tribunal at any stage. As a consequence thereof, the Assessing Authority took into consideration the fact that the brick kiln was operating on 15 pillars as also the quantity of raw bricks which were found during the course of the survey. Upon an overall assessment on the basis of the material gathered, the Assessing Authority came to conclude that the brick kiln would have worked for 129 days. It has then proceeded to estimate the total quantity of bricks manufactured during this period and ultimately held the assessee liable to pay a sum of Rs.49,700. It is this decision which has been affirmed by the Tribunal in terms of the order impugned.
Sri Kumar, learned counsel for the revisionist has submitted that the assessee was never put to notice as contemplated under the proviso to Rule 41(8) of the 1948 Rules. The provision, it is relevant to note, requires the Assessing Authority to call upon the dealer to show cause in respect of non-acceptance of turnover of sales or purchases or both as disclosed in the returns if submitted by him. The Assessing Authority is thereafter before finalizing the assessment to the best of his judgment required to afford a reasonable opportunity to the assessee to furnish his reply and explanation. In view of the alleged infraction of the proviso, Sri Kumar would contend that the orders impugned are liable to be set aside. The Court finds itself unable to sustain this submission for the following two reasons. A careful reading of the proviso clearly establishes that it comes into play in a situation where the returns and records maintained by the assessee are not accepted. Admittedly, in the facts of the present case, no records or books of account were maintained or produced. Secondly, the revisionist has failed to establish any prejudice. Even if, it were assumed that books of account were being maintained, it was always open to the assessee to produce the same either before the First Appellate Authority or the Tribunal. Admittedly, this course was not adopted. Even before this Court in revision, no material has been brought on record to establish that books of account were being regularly maintained. In view thereof, the Court is of the considered opinion that no prejudice has been caused to the revisionist. Accordingly and on account of the above conclusions, the Court does not find any ground to interfere on an alleged infraction of Rule 41(8).
Accordingly and for the reasons noted above, this revision fails and is dismissed.
Order Date :- 28.11.2017 Arun K. Singh