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M/S Orient Ceramics & Industries Ltd., Bulandshahr. v. The Commissioner, Sales Tax, U.P., Lucknow. - SALES/TRADE TAX REVISION No. 377 of 1991 [2005] RD-AH 4262 (17 October 2005)


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Court no.55




M/S Orient Ceramics & Industries Ltd., Bulandshahr.   Applicant


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


Hon'ble Rajes Kumar, J.

Present two revisions under Section 11 of U.P. Sales Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 14th January, 1991 relating to the assessment year 1983-84 both under the U.P. Sales Tax Act and Central Sales Tax Act.

The applicant was involved in the manufacture and sale of ceramic tiles. The books of account have been mainly rejected on the ground that the a survey was made by the Director of Intelligence on 08.10.1985 at the residential premises of some of the officers of the company and during the search certain documents were seized. Statement of the officers and the purchaser were also recorded and on the basis of documents and statements it has been concluded that the extra sum of Rs.5/- has been paid by the purchaser to the officer which has been considered as payment towards sale consideration not recorded in the books of account and, accordingly, books of account have been rejected and the turnover has been enhanced.. Rejection of the books of account and the enhancement of the turnover have been upheld by the Tribunal. It may be mentioned here that on the basis of these documents, proceedings under the Central Excise Act have also been initiated. Tribunal, in its order referred that the proceeding under the Central Excise Act is pending. The case of the applicant was that a sum of Rs.5/- was received by the officer for providing extra service to the customer and was not towards the sale consideration and the amount was charged without the knowledge of the company.

Heard Sri Bharat Ji Agrawal, learned Senior Advocate for the applicant and the learned Standing Counsel.

Learned counsel for the applicant filed the supplementary affidavit annexing the orders passed by the Central Excise Authority and also the orders passed by the Deputy Commissioner (Appeals) for the assessment year 1985-86, assessment orders passed for the assessment year 1984-85. It is contended that under the Central Excise Act, proceeding has been dropped by the Additional Collector of Central Excise vide its order dated 17.04.1989 and the notice issued by the Central Excise Authority has also been quashed by the Delhi High Court in the suit no.690 of 1988 vide order dated 31st July, 1989. In the subsequent years, the assessing authority has not drawn the adverse inference from these documents. In the counter affidavit filed in reply to the supplementary affidavit, it has been stated that these documents were not filed by the dealer before the assessing authority or the Tribunal.

On the facts and circumstances of the case, since the adverse inference has been drawn from the documents seized by the Central Excise Authority and the Tribunal in its order referred that the proceeding under the Central Excise Act has not been concluded, in my view, it will be appropriate that the final orders passed by the Central Excise Authority may be considered. In the circumstances, the matter is remanded back to the assessing officer to pass assessment orders afresh after taking into account various orders passed by the Central Excise Authority and the documents seized and any other material after giving an opportunity to the applicant.

In the result, both the revisions are allowed. The order of the Tribunal and the authorities below are set aside and the assessing authority is directed to pass the assessment orders afresh in the light of the observations made above.




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