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KAPIL KUMAR & BROTHERS THRU' PROPRIETOR RAMESH CHANDRA versus THE COMMISSIONER OF TRADE TAX, U.P. LUCKNOW

High Court of Judicature at Allahabad

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Kapil Kumar & Brothers Thru' Proprietor Ramesh Chandra v. The Commissioner Of Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 1679 of 2006 [2007] RD-AH 6435 (9 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFRRESERVED

TRADE TAX REVISION NO.1679 OF 2006

Kapil Kumar and Brothers, Gautam Budh Nagar.       ....Applicant

Versus

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 03.11.2006 relating to the assessment year 2003-04 under U.P. Trade Tax Act.

Applicant was engaged in the business of purchase and sale of refined oil, vanaspati ghee, rice brand oil and sugar. Applicant claimed to have maintained the books of account in the regular course of business. Applicant disclosed total sales at Rs.1,54,46,975/- and claimed the exemption on the entire disclosed turn over on the ground that the turn over related to the U.P. purchased tax paid goods or exempted goods. Books of account had been rejected and the turn over had been enhanced mainly on the ground that the applicant was found selling the goods by duplicate bill books and the sales relating thereof had not been shown in the regular books of account, in the regular course of business. The aforesaid conclusion has been arrived at, on the basis of road checking of three transactions of sale by Trade Tax Officer, Mobile Squad. At the time of checking of the three transactions on three different dates, Trade Tax Officer, Mobile Squad had seized bills no.627, 706 and 807 for Rs.1,29,500/-, Rs.1,29,500/- and Rs.1,28,800/- respectively, which were alongwith the goods. The copies of three bills have been sent by the Trade Tax Officer, Mobile Squad to the assessing authority. On the verification from the regular bill books it was found that the alleged three bills had been issued from the duplicate bill books and when they were caught applicant tried to make the entries of these three bills in the regular bill books. Treating the sales against aforesaid three bills outside the books of account, the suppressed turn over for the entire year was estimated at Rs.20 crores by the assessing authority, which was partly reduced in first appeal. Tribunal, however, estimated the suppressed sales equal to the taxable turn over disclosed at Rs.1,54,46,975/-.

Heard Sri Bharatji Agrawal, learned Senior Advocate assisted by Sri Piyush Agrawal, learned counsel appearing on behalf of the applicant and Sri B.K. Pandey, Learned Standing Counsel.

Learned counsel for the applicant submitted that the inference drawn by the Tribunal that the alleged three bills had been issued from the duplicate bill books and when the transactions were checked by the Trade Tax Officer, Mobile Squad and the bill books were caught same were incorporated in the regular bill books, is not justified. He submitted that the difference in writing in the original bills and the carbon copies available in the regular bill books are on account of the fact that while preparing the bills carbon was shifted/folded and thus, the impression in the carbon copies could not come.  Thus, carbon copies were subsequently prepared, which resulted little difference but it can not be inferred that the aforesaid three bills were not issued from the regular bill books and alleged three bills were issued from the duplicate bill books.  He further submitted that the tax has been levied by the Tribunal on the suppressed sales on the ground that their source of the purchases have not been disclosed and the sales have been treated relating to the purchases made from unregistered dealer.

Learned Standing Counsel submitted that all the three impugned bills are in the hand writing of Shri Devendra Kumar while all other bills available in the regular bill books have been issued by Shri Ramesh Chandra and are in the hand writing of Shri Ramesh Chandra. Only in these three bills the name and the place of the purchasers are mentioned while in the other bills names and place are not mentioned.  In all the bills dates are mentioned in Hindi while only in the impugned three bills dates are mentioned in English. In these three bills only tax paid is mentioned while in the other bills tax paid is not mentioned.  All other bills are of less than Rs.20,000/- while only these three impugned bills are more than Rs.1.25 lacs. There is substantial variation in writing of the bills, which were examined with the carbon copies of the bills available in the bill books. The aforesaid fact clearly establishes that the impugned bills, which were checked by the Trade Tax Officer, Mobile Squad during the course of transportation of the goods were issued from the duplicate bill books and when they were caught applicant tried to incorporate in the regular bill books. Thus, inference drawn by the Tribunal and the authorities below that the bills, which were checked by the Mobile Squad had been issued from the duplicate bill books relating to the suppressed transactions in a planned manner and when they were caught applicant incorporated in the regular bill books is justified. Tribunal on the facts and circumstances of the case, rightly held that in every month 100 duplicate bills had been issued. If the value of each bill is considered at Rs.1,29,000/- total value of 100 bills comes to Rs. 1,29,00,000/-, but taking a lenient view only a sum of Rs.1,54,46,975/- has been estimated as suppressed sale for the entire assessment year. He submitted that the source of the suppressed purchases have not been disclosed by the applicant. Therefore, in the absence of sources of purchases they have been rightly held liable to tax. He submitted that the decision of the Apex Court in the case of M/s Jhunjhunwala & others Vs. State of U.P. and others, reported in 2206 NTN (Vol.31), 276 does not apply to the present case, inasmuch as it relates to the taxability of the disclosed sales of the goods from the unregistered dealers and not a case of suppressed sales.

Having heard learned counsel for the parties, I have perused the order of the Tribunal and the authorities below.

Three bill books which have been seized by the Tribunal have been summoned and perused. The photo copies of three bills which were checked by the Mobile Squad are available in assessment record and have also been perused. From the perusal of the three bills no.627, 706 and 807 checked by Mobile Squad on three different dates which are available in the assessment records and the three regular bill books which contained the carbon copies of the aforesaid three bills clearly establishes beyond doubt that the three bills which have been checked  by the Trade Tax Officer, Mobile Squad on three different dates had been issued from the duplicate bill books and when they were caught they were incorporated in the regular bill books. The reason for coming to the aforesaid conclusion are as follows:

1) There are substantial differences in the hand-writing of the three bills and the carbon copies. The details of such differences are referred in the order of the Tribunal, which are apparent and admitted by the learned counsel for the applicant but explained that it happened due to shifting of the carbon which can not be accepted.

2) These three bills are only in the hand-writing and signature of Shri Devendra Kumar and rest of the bills are in the hand-writing of Shri Ramesh Chandra.

3) Only in these three bills name of the purchasers and place are mentioned. In none of the other bills, names and place of the purchasers are mentioned. Only in these three bills, dates are mentioned. Only in these three bills tax paid are mentioned while in the other bills tax paid is not mentioned. All other bills are of the value less than Rs.25,000/- only and these three bills are only of more than Rs.1 lac.

On these facts, it is apparent that the applicant was maintaining three duplicate bill books being issued in the hand writing of Shri Devendra Kumar and three regular bill books were also maintained and were being issued by Shri Ramesh Chandra. When these three bills from the duplicate bill books were caught, they were tried  to be incorporated and to match the hand-writing, the carbon copies of these three bills have been got prepared in the hand-writing of Shri Devendra Kumar in the regular bill books. It has not been explained that why only these three bills have been issued by Shri Devendra Kumar; why in these three bills name of the purchasers and place are mentioned; why only these three bills are in English; why in these bills tax paid goods are mentioned  and why only in three bills carbon was shifted. The aforesaid fact reveals that the applicant was maintaining the duplicate bills books for the suppressed transactions and when they were caught, they have been incorporated in the regular bill books. In the circumstances, the inference drawn by the Tribunal and the authorities below that the applicant had indulged in making the suppressed sales in planned manner by issuing the bills from the duplicate bill books in the regular course of business can not be said to be without any basis. The inference of the Tribunal that every month suppressed sales had been made against 100 bills is also not without any basis. Taking the value of the each bill at Rs.1,29,000/-, total suppressed sale for the entire year comes to Rs.15,48 crores. Tribunal has taken a very lenient view and has estimated the suppressed sales only at Rs.1,54,46,975/-, which can not be said to be arbitrary or excessive.

In respect of the suppressed sales, applicant was not able to tell the source of their purchases. Applicant was not able to prove that in respect of such suppressed sales it was not importer or manufacturer and such purchases have not been made from the unregistered manufacturer dealer. Thus, in my view Tribunal has rightly held the applicant liable to tax in respect of the suppressed sales. If any contrary view would be taken the suppressed sales cannot be taxed in any case.

In the present case, the decision of the Apex Court in the case of M/s M/s Jhunjhunwala & others Vs. State of U.P. and others (Supra)  is not applicable. That was the case of admitted purchases from the unregistered dealer which has been held taxable under section 2 (ee) of the Act and was not the case of suppressed purchases and sales.

Before parting with the case, it may be mentioned here that in the State evasion of the tax are going on in a planned manner by the various dealers. These evasions can be checked by the regular, fair and honest checking by the Trade Tax Officer, Mobile Squad. It is seen that the checking by the Trade Tax Officer, Mobile Squad at a place where there is no check post or other places are not regular, fair and honest and this results in large scale of evasion of tax. To check the evasion of tax, it is necessary to make the regular checking, Commissioner should take more effective measures in this regard and keep check on their officers.

In the result, revision is devoid of merit and is dismissed. The copy of the three bills books are being handed over to the learned Standing Counsel with the direction to hand over the same to the applicant after keeping the photocopies of the three bills in the assessment records duly signed by the applicant and concerned officer.

Dt.09.04.2007

R./


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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