High Court of Judicature at Allahabad
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The Commissioner, Trade Tax U.P. Lucknow v. S/S Baij Nath Ganga Prasad - SALES/TRADE TAX REVISION DEFECTIVE No. 1689 of 1998  RD-AH 3733 (29 September 2005)
TRADE TAX REVISION NO.(1689) of 1998
The Commissioner of Trade Tax, U.P., Lucknow. Applicant
S/S Baijnath Ganga Prasad, Shyamganj, Bareilly. 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 17th July, 1998 relating to the assessment year 1989-90.
Assessing authority relied upon certain entries found in a seized diary from the possession of M/S Jain Brokers Co. Kesarganj, Mandi Meerut against the dealer/opposite party (hereinafter referred to as "the dealer"). The matter went to the Tribunal in appeal. Tribunal remanded back the matter to the assessing authority to provide opportunity of cross-examination of M/S Jain Brokers Co. Kesarganj, Mandi Meerut before drawing any adverse inference. It appears that the assessing authority issued notice under Rule 75 and summons to M/S Jain Brokers Co. Kesarganj, Mandi Meerut, but M/S Jain Brokers Co. Kesarganj, Mandi Meerut could not appear. Though M/S Jain Brokers Co. Kesarganj, Mandi Meerut did not appear in pursuance of the notice, still the alleged entries in the seized diary found from the possession of M/S Jain Brokers Co. Kesarganj, Mandi Meerut had been taken adverse to the dealer. The books of account and disclosed turnover have been rejected. Dealer filed appeal before the Deputy Commissioner (Appeals), which was allowed. Commissioner of Trade Tax filed appeal, which has been rejected by the impugned order.
Heard learned Standing Counsel and Sri P. Agrawal, learned counsel appearing on behalf of the dealer/opposite party.
I have perused the order of the Tribunal and the authorities below.
I do not find any error in the order of the Tribunal. Tribunal has held that the assessing authority has simply sent notice under Rule 75 and has not exercised his powers of the Code of Civil Procedure, 1908 which was vested in it under Rule 75. Tribunal held that under section 32 of the Code of Civil Procedure, the court may compel the attendance of any person to whom a summon has been issued under section 30 and for that purpose may issue a warrant for his arrest, to attach and sell his property, impose a fine upon him not exceeding five hundred rupees and to furnish security for his appearance and in default commit him to the civil imprisonment, but the said power has not been exercised and M/S Jain Brokers Co. Kesarganj, Mandi Meerut has not been compelled to appear for cross-examination. Tribunal found that since the opportunity of the cross-examination has not been given, assessing authority had failed to prove the genuineness and authenticity of the entries in the seized diary. Tribunal further observed that on the verification of the entries made in the diary, it was found that both less and higher figures have been shown, than the figures shown in the books of account and why the enquiry was not made from the purchasing dealers whose complete address were mentioned in the diary and the purchasing dealers were of Meerut. Tribunal also found force in the argument of the learned counsel for the dealer that if the intention of the dealer was to evade tax then the higher sales than the entries made in the diary would not have been shown by the dealer. On these facts, the Tribunal found that the adverse inference drawn from the alleged entries of the diary against the dealer was not justified.
In my opinion, the finding of the Tribunal is finding of fact based on the material on record and need no interference.
In the result, revision fails and is, accordingly, dismissed.
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