High Court of Judicature at Allahabad
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M/S Amar And Company Ram Katora Varanasi v. The Commissioner, Lucknow - SALES/TRADE TAX REVISION No. 1035 of 2000  RD-AH 559 (10 January 2007)
TRADE TAX REVISION NO.1035 OF 2000
M/s Amar and Company, Varanasi. ....Applicant
The Commissioner, Trade Tax, U.P., Lucknow. .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 31.03.2000 relating to the assessment year 1992-93.
Applicant was engaged in the business of manufacture and sale of biscuits and had maintained the books of account in the regular course of business and had disclosed the taxable turn over at Rs.1,69,00,957.64p. Assessing authority rejected the books of account and estimated the taxable turn over at Rs.1,77,43,531/-. First appellate authority accepted the books of account and disclosed turn over. In appeal, filed by the Commissioner of Trade Tax, Tribunal allowed the appeal in part and has estimated the taxable turn over at Rs.1.72 crore. Tribunal upheld the rejection of the books of account on the ground that at the time of survey dated 26.08.1992 made by S.T.O. (S.I.B.) on physical verification 10 bags maida were found less and 10 tins ghee in excess.
Heard learned counsel for the parties.
Learned counsel for the applicant submitted that at the time of survey dated 26.08.1992, 394 bags maida, 158 bags sugar and 229 tins ghee were found at one place. In the survey report dated 26.08.1992 it was also mentioned that at another place 10 tins ghee were found. The books of account were found upto date. He submitted that in the survey report dated 26.08.1992, 10 tins ghee were wrongly mentioned, and it should be 10 bags maida, which were actually available at the time of survey. He submitted that on the very next day on 27.08.1992 an application was moved before the Assistant Commissioner pointing out the mistake and an affidavit had also been filed in this regard. He submitted that having regard to the fact that no discrepancy was found in the books of account and at the time of survey books of account were found upto date and at the time of survey, huge stock of maida, sugar and ghee were found, the possibility of the mistake in writing of 10 tins ghee instead of 10 bags maida in the survey report can not be over ruled. He submitted that the books of account had always been accepted in the previous years and in this year also by the first appellate authority and there was no reason with the Tribunal to interfere with the order of the first appellate authority. Learned Standing Counsel relied upon the order of the Tribunal.
Having heard learned counsel for the parties, I have perused the order of the Tribunal and the authorities below.
In my view, order of the Tribunal is not sustainable. No defect was found in the books of account. At the time of survey huge stock of maida, sugar and ghee were found. The dispute is only with regard to 10 tins ghee, which is mentioned in the survey report. According to the applicant it was 10 bags maida, which was inadvertently mentioned as 10 tins ghee. The difference in the stock of ghee and maida is of 10 tins ghee and 10 bags maida. Due to the mention of 10 tins ghee in the survey report, stock of ghee has been held in excess by 10 tins and the stock of maida has been held less by 10 bags. If in place of 10 tins ghee, 10 bags maida is to considered, there would be no difference in the stock of ghee and maida. Having regard to the fact that no discrepancy was found in the books of account and were found upto date and no specific case of suppression of turn over was found, the possibility of the mistake in writing 10 tins ghee in the survey report in place of 10 bags maida can not be over ruled. First appellate authority has accepted the explanation of the applicant keeping in view the entire facts and circumstances of the case. There appears to be no valid reason to interfere by the Tribunal with the order of the first appellate authority.
In the result, revision is allowed. Order of the Tribunal is set aside and the order of the first appellate authority is restored. Tribunal is directed to pass appropriate orders under section 11 (8) of the Act.
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