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Adarsh Kumhari Audyogic Utpadan Sahkari Samiti Ltd v. The Commissioner Of Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 2028 of 2004  RD-AH 814 (17 September 2004)
Court no. 55
Trade Tax Revision no. 2028 of 2004.
Adarsh Kumhari Audyogic Utpadan Sahkari Samiti Ltd. Revisionist.
The Commissioner of Trade Tax, U. P. Lucknow.................Respondent.
Hon'ble Rajes Kumar, J.
The present revision under Section 11 of U. P. Trade Tax Act (hereinafter referred to as ''Act') is directed against the order of Tribunal dated 28.2.2004 relating to assessment years 1993-94.
Applicant was engaged in the manufacturing and sales of bricks. In the year under consideration, applicant had not operated Kiln in the first season and in the second season, Kiln was operated from 2.3.1994 to 31.3.1994 for 30 days. Applicant alleged to have been maintained books of account in the regular course of business in the form of Pathai, Bharai, Nikasi register, Stock register, Sale register, Coal register, Cash memo and Coal Vouchers and according to which disclosed total and taxable turnover at Rs.38,250/-. Before the Assessing Authority, applicant had produced the books of account. Assessing Authority had not accepted the books of account and estimated a taxable turnover at Rs.5,66,385/-. Applicant filed appeal before the Deputy Commissioner (Appeals), Trade Tax, Varanasi, which was rejected. Applicant filed second appeal before the Tribunal, which has also been rejected vide order dated 28.2.2004.
Heard Counsel for the parties.
Learned Counsel for the applicant submitted that no defect whatsoever was found in the books of account. He submitted that the rejection of books of account and the enhancement of firing period in the second season as disclosed against the firing period of 85 days is arbitrary and without any basis. He submitted that at the time of survey dated 4.3.1994 which was relevant for the year under consideration, it was told that the firing was started 2-3 days before. He further submitted that at the time of survey dated 27.4.1994 which had been relied upon for rejecting the firing period, is not relevant for the year under consideration and even in that survey, contradictory fact had been stated, for which, no query was made. He stated that at one stage, it is, told that the firing had been started in the month of January which was continuously going on and at another stage, it was told that the Kiln had not completed one round. If the firing was started in the month of January and continuously going on, it was not possible that the Kiln had not completed one round. He further submitted that the confidential report of survey dated 4.3.1994, cannot be relied upon, inasmuch as, the same was not confronted to the dealer at the time of survey. It is also stated that the applicant immediately on 30.4.1994 objected the fact mentioned at the time of survey dated 27.4.1994 that firing was started from January. Learned Standing Counsel submitted that since at the time of survey dated 27.4.1994 it was told by the person concern that firing was started in the month of January, the claim of applicant about the starting of firing from 2.3.1994 can not be accepted.
I have perused the order of Tribunal and the authorities below. The original copy of survey report has also been produced before the Court. In my opinion, rejection of books of account is not justified. Books of account were produced at the time of assessment proceedings and no defect was found. At the time of survey-dated 4.3.1994, which is relevant for the year under consideration, it was categorically stated that the firing was started two days before which supports the firing disclosed by the applicant. Confidential report mentioned in the survey report, could not be relied upon. If the Surveying Authority was of the view that the statement given by the person concern about the date of starting the firing was wrong, same should have immediately been confronted to the dealer and necessary enquiry in this regard, should be made. Any thing, which had been mentioned in the survey report, on the back of dealer, can not be relied upon. This Court in the case of Moon Glass Works Vs. CST reported in 2004 (35) STJ page 355, this court has held that the confidential report mentioned in the survey report can not be relied upon. Survey dated 27.4.1994 is not relevant for the year under consideration. Perusal of Survey report shows that at one stage, person concern told that firing was started from January and was going on continuously and thereafter, the same person also told that one round had not been completed. If firing was started from January and was continuously going on then it was not possible that the Kiln had not completed even one round in more than three months, therefore, if both the surveys report dated 4.3.1994 and 27.4.1994 are read together, it is difficult to disbelieve the firing period disclosed by the applicant. Moreover, dealer immediately on 30.4.94 filed an objection about the alleged averment mentioned in the survey report dated 27.4.1994. In view of the fact that no defect is found in the books of account and there is no material to disbelieve the firing period disclosed by the applicant, the books of account is liable to be accepted.
In the result, revision is allowed. Order of Tribunal is set aside and the books of account is accepted. Tribunal is directed to pass necessary orders under Section 11 of the Act.
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