High Court of Judicature at Allahabad
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M/S Shiv Int Udyog v. The Commissioner Trade Tax U.P. Lucknow - SALES/TRADE TAX REVISION No. 56 of 2007  RD-AH 2080 (8 February 2007)
TRADE TAX REVISION NO.56 OF 2007
M/S Shiv Int Udyog. ....Applicant
Commissioner of Trade Tax. .Opp.party
Hon'ble Rajes Kumar, J.
Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 19.12.2006 relating to the assessment year 2002-03.
Applicant was engaged in the business of manufacture and sale of bricks and claimed to have maintained the books of account in the regular course of business. Assessing authority estimated the turn over by way of best judgment assessment. Being aggrieved by the assessment order, applicant filed appeal before the first appellate authority, which was allowed in part. Against the order of the first appellate authority, applicant as well as Commissioner of Trade Tax filed appeals before the Tribunal. Tribunal by the impugned order dismissed the appeal of the applicant and has partly allowed the appeal of the Commissioner of Trade Tax.
Heard learned counsel for the parties.
With the consent of both the parties, present revision is being disposed of at the stage of admission itself.
Learned counsel for the applicant submitted that the books of account had been properly maintained in the regular course of business and the assessing authority had rejected the books of account without pointing out any defect in it. He submitted that the assessing authority had illegally mentioned in the assessment order that the books of account have not been produced though it was produced and duly examined. He submitted that no objection had been raised by the assessing authority in the show cause notice that the books of account have not been produced. He further submitted that before the Tribunal applicant has specifically challenged the rejection of books of account, which is apparent from the written submission submitted before the Tribunal, which is filed as annexure-8 to the revision petition but the Tribunal has not adjudicated the question of rejection of books of account and proceeded to estimate the turn over. He submitted that unless books of account are held to be unreliable and is liable to be rejected, the best judgment assessment can not be made. Learned Standing Counsel relied upon the order of the Tribunal.
Having heard learned counsel for the parties, I have perused the order of Tribunal and the authorities below.
I find substance in the argument of learned counsel for the applicant. Written submission filed as annexure-8 to the revision petition reveals that the rejection of books of account has been specifically challenged before the Tribunal. Tribunal has not adjudicated the question of rejection of books of account and has only proceeded to estimate the turn over. It is settled principle of law that the best judgment assessment can only be made if the books of account is found to be unreliable. Since the Tribunal has not adjudicated the question of rejection of books of account, order of the Tribunal is vitiated and is liable to be set aside. Matter is remanded back to the Tribunal to decide the appeal afresh and adjudicate the question relating to the books of account and in case if Tribunal held that the books of account are unreliable and liable to be rejected, Tribunal may proceed to estimate the turn over by way of best judgment assessment.
In the result, revision is allowed. Order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh.
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