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M/S. Shree Traders v. Commissioner Of Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 1199 of 1995  RD-AH 621 (24 August 2004)
TRADE TAX REVISION NO.1199 OF 1995
M/s Shree Traders ....Applicant
Commissioner of 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 31.03.1995 relating to the assessment year 1983-84 under the Central Sales Tax Act.
On the basis of the information received from STO (SIB) Mandi Samiti that the applicant had dispatched 63 trucks food grains outside the State of U.P. against the gate pass issued by Mandi Samiti. Assessing authority assessed the turn over at Rs.14,50,000/-. First appeal filed by the applicant was rejected. Second appeal was also rejected by the Tribunal.
Heard learned counsel for the parties.
Learned counsel for the applicant submitted that the detail of the information received from Mandi Samiti was not confronted and the opportunity of cross- examination had not been given though the applicant moved an application under Rule 75 of the U.P. Sales Tax Rules (hereinafter referred to as "Rule") for summoning of the record of Mandi Samiti and for the opportunity of the cross-examination. He submitted that the applicant all along denied any sales being made outside the State of U.P. Tribunal has rejected the plea on the ground that the applicant had not produced the books of account before the assessing authority and the books of account have been produced for the first time after 7-8 years before the Tribunal. Learned Standing Counsel supported the order of the Tribunal.
I have perused the order of Tribunal and the authorities below.
On account of the non-production of the books of account, it is open to the assessing authority to make a best judgment assessment and estimate the turn over but if the assessing authority received any information from Mandi Samiti and wants to rely upon such information against the applicant, assessing authority must confront the necessary details of such information and if the applicant demands to summon the record of the Mandi Samiti, which is source of information, it should be summoned in exercise of powers under Rule 75 of the Rule to enable the applicant to prove its claim that such information do not relates to it. When the assessing authority wants to rely upon the information, burden lies upon the revenue authorities to establish the authenticity of such information, which can be done by confronting the record and giving the opportunity to cross-examination to the applicant under Rule 75 in case dealer disputes the correctness of such information.
Rule 75 reads as follows:
"Rule 75. Power to summon witnesses.
The Sales Tax Officer, Assistant Commissioner (Executive), Deputy Commissioner, Additional Commissioner, Commissioner, Assistant Commissioner (Judicial) and President and members of the Tribunal, as the case may be, shall have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely---
(a) enforcing the attendance of any person and examining him on oath or affirmation;
(b compelling the production of documents; and
(c) issuing commissions for the examination of witnesses;
and any proceeding before any of the officers aforesaid shall be deemed to be a judicial proceeding within the meaning of sections 193 to 228 and for the purposes of section 196 of the Indian Penal Code."
Under Rule 75 assessing authority is vested with same power as are vested in a Court under Code of Civil Procedure, 1908 trying a suit for enforcing the attendance of any person and examine him in the Court and such power can be exercised for compelling the production of document. The power vested with assessing authority under Rule 75 should be judicially exercised. Refusal to exercise such power is not justified. In the present case dealer disputed the correctness of information and denied any sales outside the State of U.P. Therefore, on the demand being made to confront and summon the record of Mandi Samiti it was necessary on the part of assessing authority to summon the record of Mandi Samiti to prove the correctness of information. In the circumstances, matter is remanded back to the assessing authority to confront the records relating to Mandi Samiti, which is source of information to prove its case that such information relates to the applicant. For the confrontation of such documents, assessing authority may exercise its power under Rule 75 to summon those documents.
In the result, revision is allowed. Order of the Tribunal is set aside and the matter is remanded back to the assessing officers to pass assessment order afresh in the light of the observation made above.
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