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M/s Moon Glass Store, Saharanpur. v. The Commissioner, Sales Tax, U.P., Lucknow. - SALES/TRADE TAX REVISION No. 668 of 1994 [2003] RD-AH 511 (11 December 2003)


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M/s Moon Glass Store, Saharanpur. ....Applicant


The Commissioner, Sales Tax, U.P., Lucknow. ....Opp.Party


Hon'ble Rajes Kumar, J.

This revision is directed against the order dated 28.02.1994 relating to the assessment year 1984-85.

Applicant was engaged in the business of U.P. purchased crockery and glassware, which was liable to tax at the point of manufacturer or importer. Books of account of the applicant was rejected by assessing authority. Applicant claimed to have maintained books of account in the regular course of business relating to purchases and sales and according to which disclosed total sales at Rs.5,54,842.83p.  relating to the U.P. purchased goods, and admitted any taxable turn over. Assessing Authority rejected the books of account and estimated taxable turn over at Ex.-U.P. at Rs.4,50,000/-. Assessing Authority, however, granted exemption on the turn over crockery and glassware of Rs.5,60,000/-, which relates to U.P. purchased goods.  First Appellate Authority allowed the appeal and accepted the books of account and disclosed turn over and declared the applicant non-taxable. Commissioner of Sales Tax filed second appeal before Tribunal, which was allowed in part. Tribunal has confirmed the rejection of books of account and estimated the turn over at Rs.4 lacs.  Being aggrieved by the order of Tribunal, present revision has been filed.

Heard Sri Bharat Ji Agrawal, learned Senior Advocate, assisted by Sri Piyush Agrawal, learned counsel for the applicant and Sri U.K.Pandey, learned Standing Counsel.

Tribunal has rejected the books of account on the ground that while transporting the goods on 31.10.1984 in truck no.URM-8042, Sales Tax Officer, Mobile Squad made enquiry and perused bills no.122 and 124 dated 16.08.1984. In the bills value of goods was shown at Rs.8,674/- , which was found less and its value was estimated at Rs.18,000/- and goods were seized, which were subsequently released on furnishing security. It has been further observed that in the survey report dated 31.10.1984 in the confidential report, survey authority had mentioned the stock between Rs.7 to 8 lacs while dealer explained that the stock was only between Rs.2 to two and half lacs and cash memo, which was found at the time of survey entry was found in the books of account. On the basis of aforesaid observation books of account has been rejected.

I have perused the order of Tribunal and the authorities below.

In my view, order of Tribunal rejecting the books of account is not justified and estimate of taxable turn over of imported crockery and glassware at Rs.4 lacs are not justified. Merely because Sales Tax Officer, Mobile Squad was of the view that in the bills issued by seller lesser value was shown, can not be a ground for rejection of books of account. Further with regard to the observation that at the time of survey dated 31.10.1984 entry of the cash memo was not found entered in the books of account, first appellate authority observed that cash memo dated 17.09.1984 was issued between 37 and 39, which were also dated 17.09.1984 and inadvertently cash memo no.38 was not mentioned. It has been further observed that the entry of such cash memo was duly found in the cash book. First Appellate Authority further observed that in the survey report dated 31.10.1984 also it was mentioned that it was told that against said cash memo sale was made on 17.09.1984. Tribunal while drawing adverse inference could not assail to the finding recorded by first appellate authority. In any view of the matter, it is not the case of the revenue that said cash memo was not issued from the cash memo book of the dealer. So far as stock mentioned at Rs.7 to 8 lacs  in confidential note of survey report dated 31.10.1984 is concerned, no reliance can be placed in such confidential report, which has not been confronted to the dealer at the time of survey.

In these circumstances, I do not find any justification in rejecting the books of account. Case of the applicant was that it only dealt in U.P. purchased goods. No material has been placed on record to show that applicant had ever found importing any goods from outside the State of U.P. In the absence of any material of import of goods from outside the State of U.P., estimate of turn over of imported goods was not justified. Reliance is placed on the decision of this court in the case of Enterprising Traders Vs. CST, reported in 1987 UPTC, 247.

For the reasons stated above, order of Tribunal is liable to be set aside and the order of first appellate authority is liable to be restored.

In the result, revision is allowed. Order of Tribunal dated 28.02.1984 is set aside and the order of first appellate authority is restored.




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