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THE COMMISSIONER, TRADE TAX, U.P.,LUCKNOW versus STAR PAPER MILLS LTD. SAHARANPUR

High Court of Judicature at Allahabad

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The Commissioner, Trade Tax, U.P.,Lucknow v. Star Paper Mills Ltd. Saharanpur - SALES/TRADE TAX REVISION No. 299 of 1996 [2005] RD-AH 804 (18 March 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Trade Tax Revision no.299 of 1996.

Commissioner,  Trade Tax, U.P. Lucknow.         Applicant.

Versus

M/S Star Paper Mills Ltd., Saharanpur  .............................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 the Tribunal dated 18th October, 1995 relating to assessment year 1985-86.

The brief facts of the case are that the applicant is a manufacturer and a dealer of papers.  During the year under consideration, the applicant had sold papers to various parties against Form-3-B.  On the basis of Form 3-B received from various purchasers, the applicant had claimed exemption during the assessment proceedings.  The Assessing Authority while passing original assessment order had granted exemption on the basis of Form 3-B to the applicant.  Subsequently, the Assessing Authority received information from various Assessing Authorities of the purchasing dealers who had issued Forms, that  in some cases the alleged Forms had not been issued to such purchasing dealer and in some cases the Recognition Certificate under Section 4-B was cancelled prior to the date of transaction and in some cases the record of Issuing Dealer shows that the alleged Forms had been issued to the different parties for different amount than the amount shown in the Forms and in some cases transaction in respect of which Forms 3-B were issued falls after the closure of the business On the basis of such information, proceeding under Section 21 was initiated and the case was reopened.  The reopening of the case is not in dispute.  During the course of proceedings under Section 21, a show cause notice was issued.  The said show cause notice was replied by the applicant. However, reply has not been accepted and  the Assessing Authority passed the assessment order and disallowed the claim of exemption against said Forms 3-B. Dealer filed appeal before the Deputy Commissioner (Appeals), Saharanpur which was allowed in part. Dealer as well as Commissioner of Trade Tax filed appeals before the Tribunal. Tribunal by the impugned order rejected the appeal of the Commissioner of Trade Tax and has allowed the appeal of the dealer.

I have heard Sri Bharat Ji Agarwal learned Senior Advocates and Sri U. K. Pandey, learned Standing Counsel.  

The Forms in dispute and the reasons for the disallowance of the claims are as follows:-

M/S Kishore Enterprises, Unnao Form no. 255024 Rs. 20,05110/-, and Form No. 29257 for Rs. 25,30,679. Claim against Form no. 255024  was disallowed on the ground that the firm had been closed on 28th February,1985, the forms in question have been issued from the department on 30.11.1983 and the purchasing dealer had accepted the purchase of goods for Rs. 13,625.44 p. only Form no.29257 was disbelieved on the ground that this form has not been issued to the purchasing dealer and was forged

M/S Suresh Book Depot, Gorakhpur, Form 3-B for Rs.32,95,844/and M/S Chandra Industrial Corporation, Ghaziabad, Form no.236388 for Rs. 50,840/-. The claim of exemption has been disallowed on the ground that the purchasing parties have admitted purchases either from the one bill or the two bills only and the other bills have been incorporated in the form by the seller by manipulation.

M/S Envelop India, Bareilly. Form 3-B no.126787 for Rs. 27,450/-.                 .It has been disbelieved on the ground that the T.T.O. Bareilly informed that Form 3-B issued to the party was for the assessment year, 1984-85 and not for 1985-86.

Likewise, forms issued by M/S Securia Traders, Hathras, M/S Ram Narain Govind Ram, Moradabad, M/S Strong Packaging, Moradabad and  M/S M.R. Industries, Moradabad   On the ground that the respective Assessing Authorities had informed that the parties in question are not admitting the purchases and amount has been added in the Form by the seller.

M/S National Packaging, Moradabad.. The claim was disallowed on the ground that the purchaser has not admitted the alleged purchases and alleged that amount was added by the seller in the Form..

Tribunal recorded the following findings.

"Therefore, in view of the discussions made above, we are of the opinion that since the forms in question are issued by the department to the purchasing dealers and the purchasing dealers issued these forms to the applicant under their seal and signature, the selling dealer cannot be burdened with the liability in case it is found that the purchasing dealer was not authorised to issue Form III-B in question or that some of the purchases have not been shown by the purchasing dealer in the purchase list, unless it is shown that the declaration in Form III-B was apparently Farzi. Therefore, learned D.C. (Appeals) Trade Tax has committed both error of law and fact in disbelieving the claims of the assessee of exemption on the basis of Form III-B no.342769, issued by M/S Suresh Book, Depot, Gorakhpur for Rs. 32,95,844/- only on the basis of the information furnished by the T.T.O. Gorakhpur, since there is nothing on record to prove that Form III-B in question has not been issued by the department to the purchasing dealer or the form in question was not genuine. All the entries were filled by the purchaser and if any manipulation was there on the form in question, the liability was of the purchaser and not the selling dealer. Moreover, M/S Suresh Book Depot, Gorakhpur has been assessed to tax by the Assessing authority of the purchasing dealer. Therefore, no tax could validly be imposed on the assessee. Similarly, M/S National Packaging Industries, Moradabad who issued Form III-B nos. 114562, 114560 and 114567 for Rs.15601/-, Rs.93710/- and Rs.132392/- has also been assessed to tax on such purchases on the basis of Form III-B in the proceeding u/s 21 of the U.P. Trade Tax Act. Therefore, there was absolutely no justification to levy tax on the assessee also who iss a selling dealer. Similarly the Assessing authority was absolutely not justified in levying tax on the sales amounts of Rs. 50840/-, 24825/-, Rs.40047/-, Rs.30581/-, Rs.15365/-and Rs.22084/- issued by M/S Chandra Industrial Corporation, Ghaziabad, M/S Securia Traders, Hathras, M/S Ram Narain Govind Ram, Moradabad, M/S Strong Packaging, Moradabad and by M/S M.R. Industries, Moradabad and M/S K.C. packers, Moradabad. We, therefore, delete the tax so levied on the assessee in the proceedings u/s 21 of the U.P. Trade Tax Act.

As regards the form issued by M/S Envelop India, Bareilly No.126787 for the purchase of Rs.27450/- it was informed by the T.T.O. Bareilly that the relevant form 3-B was issued to the party concerned in the assessment year 1984-85 and not for the assessment year 1985-86, but regarding this the statement of the purchases has been filed. Therefore,   there was absolutely no fault of the selling dealer at all and the exemption cannot be denied to the assessee. Similarly as regards the forms 3-B issued by M/S Kishore Enterprises, Unnao nos. 255024 and 292257 for Rs.2005110 and Rs. 2530679, the Assessing authority  has only imposed tax only on the ground that the firm had been closed on 28.2.85, but the forms in question has been issued from the department on 30.11.83. In this connection also para Nos. 20 and 22 of the judgment of the Hon'ble High Court are relevant which are as under:-

Para no.20:- "........It is stated by the Tribunal that on enquiry, the Sales Officer, Kanpur intimated the concerned forms were not issued by the Sales Tax Officer in this assessment year and the registration of the purchasing dealer was cancelled on 24.11.79. Thus the first two purchases were made when the registration was still in force. As observed above, form 111-A issued in a preceding year could also be used. Therefore, the denial of exemption in respect of these transactions cannot be upheld."

Para no.22:- ".....The Tribunal states that on enquiry the Sales Tax Officer intimated that the said firm had closed its business on 3.11.79 and therefore, the question of issuing form for the assessment year 1980-81 does not arise. The Tribunal, therefore, upheld the denial of exemption. For the reasons discussed above the denial of exemption is unjustified and I hold that the sales being covered by form III-A, the dealer revisionist was entitled to exemption."

Therefore, in view of the caselaw mentioned above, we are of the opinion that the learned D.C. (Appeals) Trade Tax was not justified ins disbelieving the claim of the assessee of exemption on the basis of form 3-B Nos. 25524, 29258 issued by M/S Kishore Enterprises, Unnao and M/S Envelop India, Bareilly."

Learned Standing Counsel submitted that the Tribunal has erred in allowing exemption against Forms 3-B which were found not to have been issued by the alleged purchasing party and in some cases, it was found that the purchasing parties have not issued the Forms to the opposite party but have been issued to the different parties of a lesser amount and in the case of Kishore Enterprises, the business was admittedly closed on 28th February, 1985. and the sale has been shown for the period thereafter, for the assessment year,1985-86 and Forms 3-B have been noted without verifying whether the sales to such party was genuine or not and whether Forms 3-B have been actually issued by M/S Kishore Enterprises to the opposite party. Learned counsel for the opposite party supported the order of the Tribunal and has relied upon the decision of this court ins the case of M/S Indra Steels Pvt. Ltd, Ghaziabad Versus Commissioner of Sales Tax reported in 1995 UPTC 4 and M/S Gaurav Traders, Meerut Versus Commissioner of Trade Tax, U.P. Lucknow reported in 1996 NTN (Vol.9) 262

Before dealing with the objection relating to each individual Forms, it is necessary to refer provisions of the Act and the law laid down by this Court in this regard:-

Section 4-B (1) (a)-

Where any goods liable to tax under sub section (1) of Section 3-D are purchased by a dealer who is liable to tax on the turnover of first purchases under that sub section, or where any goods are purchased by- any dealer in circumstances in which such a dealer is liable to purchase tax in respect thereof under Section 3-AAAA and the dealer holds a recognition certificate issued under sub section (2) in respect thereof, he shall be liable in respect of those goods to tax at such concessional rate, or be wholly or partly exempt from tax, whether unconditionally or subject to the  conditions and restrictions specified in that behalf, as may be notified in the Gazette by the State Government in that behalf:

Rule 25-A (1), 4, 9 & 10-

An application for issue of recognition certificate under sub section (2) of Section 4-B shall be made to the Sales Tax Officer in Form XVIII, it shall be signed in the case of a business carried on by-

(a) an individual, by the proprietor or by a person having due authority to act on behalf of such proprietor;

(b) a firm, by a partner thereof;

(c) a Hindu undivided family, by the Karta or manager of the family;

(d) a body corporate (including a company, a co-operative society, a corporation or local authority), by a director, manage, secretary or the principal officer thereof, or by a person duly authorized to act on its behalf;

(e) an association of individuals to which clauses, (b), (c) or (d) do not apply, by the principal officer or person managing the business;

(f) a department of the State Government, the Central Government or any other State Government, by a person duly authorized to act on its behalf; and shall be verified in the manner provided in the said Form XVIII.

(4) If the Sales Tax Officer is satisfied, after making such enquiry as he thinks necessary, that the particulars contained in the application are correct and complete, the fee referred to in sub rule (3) has been paid and the security, if any, required to be furnished under sub section (3) of section 4-B has been furnished by the dealer within the time and in the manner required by the Sales Tax Officer, he shall grant a him a recognition certificate in Form XIX for use at the principal place of the business and also furnish, free of cost, an attested copy of such certificate for every other place of business within the State, if any.

(9)        The Sales Tax Officer on his own motion, where he is satisfied that any of the events mentioned in sub section (4) of section 4-B, has occurred, may, after giving the dealer a reasonable opportunity of being heard, cancel or amend the certificate, as the case may be.

(10) When the Sales Tax Officer cancels or amends the recognition certificate under sub rule (8) or (9), he shall forthwith publish a notice in that behalf on the notice board of his office, stating therein the name, address and other particulars of dealer whose recognition certificate is canceled or amended, specify in the order of cancellation  or amendment the date from which such cancellation or amendment shall take effect, and shall send a copy of the order to the dealer.  Where the certificate is cancelled or amended in accordance with sub rule (9), the dealer shall, within fifteen days from the date of the receipt by him of the copy of the order of cancellation or amendment, surrender to the Sales Tax Officer all copies of the recognition certificate held by him.

Rule-25-B (1)

Where a dealer holding a recognition certificate purchases any goods referred to in clause (b)' of sub section (1) of section 4-B, for use as (raw material) for the purpose of manufacture of any notified goods, he shall, if he wishes to avail of the concession referred to therein, furnish to the selling dealer a certificate in Form III-B (hereinafter called a "Declaration Form").

Section 4-B of U. P. Trade Tax Act contemplates special relief to certain manufactures in the matter of levy of sales tax. Sub Section (2) of this section envisages that a manufacturer may apply and obtain in the prescribed form a recognition certificate in respect of goods referred o in sub section (1) which are required by him for use as raw material for the purpose of manufacture in the State of U. P. notified goods which are intended to be sold by him in the State or in the course of linter-state trade or commerce or in the course of export out of India.  Sub section (1), apart from referring to the category of goods about which a recognition certificate may be obtained, also lays down, amongst others, that where a dealer sells those to a manufacturer who holds a recognition certificate in respect of those goods he shall not be liable to levy of sales tax upon the turnover of those sales to the extent that they have been exempted from such levy.  Under the U. P. Trade Tax Rules, 1948, provision has been made about the procedure for issuance of a certificate of registration, Rules 25-A and 25-B deals with the matter. The competent authority to whom an application is made, for issuance of a recognition certificate make necessary enquiries as it thinks necessary.  Assessing Authority issues Form 3-B only to those manufacturers who holds recognition certificate.  Thereafter, the dealer who hold the recognition certificate while making the purchases of material issues Form 3-B to the selling dealer.  Selling dealer claims exemption on the basis of the said Form 3-B during the course of assessment proceedings.

In the case of Commissioner of Sales Tax U. P. Vs. M/S Metal Cans, Kanpur reported in 1982 UPTC, 858 , fact of the case was that M/S Metal Cans sold the tin containers to M/S Jain      Chemical Industries, Kanpur against Form 3-B.  The claim of the exemption against said Form 3-B was refused by assessing authority in the case of M/S Metal Cans on the ground that the sale was made in the year 1972-73 while in the recognition certificate issued to M/S Jain Chemical Industries, Kanpur packing material was added w.e.f. 26.5.1975.  The Tribunal has accepted the claim of exemption which was uphold by this Court.

In the State of Madras Vs. Radio and Electricals Limited and another, (1966) 18 STC 222, a similar question had arisen before the Supreme Court in regard to the power of the assessing authority to decide whether the goods covered by a certificate of registration issued under the provision of the Central Sales Tax Act and the Rules framed thereunder, which entitled them to a concessional rate of tax, were rightly so included in the certificate of registration or not.  The Supreme Court held that while it may be open to the assessing authority to scrutinize the certificate to find out whether the certificate was genuine, normally it would not be open to him to question the wisdom of the authority which issued that certificate in including a particular article therein. Following this decision a Division Bench of Bombay High Court in Bowen Press Vs. State of Mahrashtra (1977) 39 STC 367 held that normally it would not be open to the assessing authority to refuse the benefit of the inclusion of an article in the recognition certificate in the matter of exemption or concession in the rate of tax where it could not be in dispute that the selling dealer had made the sale to a purchaser who had produced a genuine recognition certificate mentioning that article in it.

In the case of M/S Bharat Iron Stores Vs. Commissioner of Sales Tax, reported in 1994 UPTC 130 this Court observed as follows:

"The liability of the selling dealer, who accepts Form 3-A is only to check them to ensure that there is no defect on them which can be reasonably defected by an intelligent person.  It is not his duty to ensure by all possible means that the Firm is genuine or is not being misused. A dealer can not be expected to consult a document expert or to send the certificate to the Sales Tax Officer, who issued the same, for verification before accepting the same.  Any such things would make in the Act placing specifically or by necessary implication, such a burden on the selling dealer indicates that the legislature had no intention to do so."

In the case of M/S Gaurav Traders Vs. The Commissioner of Trade Tax U.P. Lucknow reported in 1996 NTN (Vol.9)-262 this court observed as follows:

"I have already mentioned the relevant provisions in the Act and the Rules which made it clear, as emphasized by the Hon'ble Supreme Court as well as in my judgment in M/S Bharat Iron Stores that the selling dealer is expected to act only as a careful businessman and the Act does not place on the selling dealer the burden of making all sorts of verification.  If there is nothing in Form-III-A raising a doubt about its genuineness or the genuineness of the purchasing dealer of the fact that the purchasing dealer is a registered dealer.  The selling dealer having acted on such a Form III-A can not be burdened with any liability if later on it is found that the purchasing dealer was non existent or its registration certificate had already been cancelled."

The contention of the learned Standing Counsel that the furnishing of Form III-A was not enough and the selling dealer has to prove to the satisfaction of the assessing authority that the sale was not made to a consumer, is not tenable.  Section 3-AAA has to be interpreted in a reasonable manner as pointed out by the Hon'ble Supreme Court in M/S Chunni Lal Parshadi Lal (supra). Unless it is shown that the declaration in Form III-A was apparently ''farzi' or there was collusion between the selling and the purchasing dealers, the furnishing of Form III-A is enough proof so as to relieve the selling dealer of his liability and if it is found that the purchasing dealer was not authorized to issue the declaration in Form III-A and had furnished a false certificate the remedy of the department is in proceeding against the purchasing dealer and not against the selling dealer who acted bonafide."

In the present case the dealer had made sales to some other parties as well and on enquiries nothing adverse has been found.  So far as M/S Loha Krishi Udyog is concerned the only information gathered by the Assessing Officer was that non such firm was registered at Bareilly.  None of the authorities below has recorded any finding that the forms III-B issued by the purchasers in the name of M/S Ratesh Steel Kanpur or M/S Loha Krishi Udyog, Bareilly were not the forms printed by the Government and issued by the Sales Tax Department.  The Forms are statutory Forms and have to be issued by the Sales Tax Officer under his seal and signature and he has to fill in the form the various details including the name of the dealer to whom the certificate is issued and his registration number.  The disputed forms were produced before me by the learned Standing Counsel that purport to bear the seal of the Sales Tax Officer mentioning the name of the officer and bearing his signatures.  No information has been collected by  the department to the effect either that the seal or the signatures or the officer were forged or that these forms were issued to some other dealer and the original particulars of the dealer filled in by the issuing authority were earased and the particulars of M/S Loha Krishi Udyog were interpolated.  Learned Standing Counsel did not point out any such characteristic in the disputed forms purporting to have been issued by M/S Loha Krishi Udyog andM/S Ritesh Steel, Kanpur.  So far as M/S Ritesh Steel, Kanpur, is concerned, it is a firm registered with the Sales Tax Department and in respect of the disputed forms purporting to have been issued by this party also non information and details of the nature referred to above has been gathered not any signs of interpolation were pointed out.

As observed in the case of M/S Bharat Iron Stores Versus Commissioner of Sales Tax, 1994 U.P.T.C. 130 an extract of which was reproduced in the case of M/S Indra Steels Pvt. Limited (supra), the liability of the selling dealer is only to check the form to ensure that there is no defect which can be reasonably detected by an intelligent person. It is not his duty to ensure by all possible means that the form is genuine or is not being misused.  In the present case the assessing authority did not probe deep into the matter and has acted merely on the information that the forms in question were not issued by the sales tax department to the two purchasing dealers referred to above.  What was further required to establish was that the present dealer acted in a manner lacking bonafides or that he was in collusion with the purchaser and knowingly accepted fictitious forms.  A dealer acting bonafide may be cheated by a purchasing dealer by issue of forms that were not genuine for one reason or the other but merely because some one had cheated the selling dealer, the later can not be subjected to liability for sales tax without showing that he acted in a manner that lacks the care and caution of a reasonable man.  Nothing of this sort has been shown in the conduct of the revisionist.  Learned Standing Counsel laid stress on an averment made by the Assessing Officer in the assessment order for assessment year 1981-82 that Sri Arun Kumar the owner of the business in the name of the revisionist had stated that he had been doing business with this party for the past several years and the forms were genuine and that he accepted the responsibility for any defect in the disputed Form 3-Kha.  After the initiation of action under Section 21 no statement of Arun Kumar seems to have been recorded to extract from him any information which may indicate that while entering into the transactions of sale in question and accepting forms III-B, he knew that the said firm do not exist and the forms are forged and fictitious.  No information has been gathered about the manner in which the transactions were executed.  The payment for the sales were made and the goods were transported.  Therefore, from the mere information that the forms in question were not issued by the Sales Tax Department to the two parties referred to above without indicating to whom they were actually issued.  The present revisionist can not be assumed to have any guilty intention to avoid payment of tax by accepting the disputed forms.  In my view therefore, the Tribunal's finding that the dealer was wrongly allowed exemption in the original assessment or that the transactions of sales purporting to have been made to the two parties against forms III-B were liable to tax is legally erroneous. The sales in question were granted exemption in the original assessment and no good reason had been made out to withdraw that exemption and bring to tax the sales in question."

Now in the background of the principle of law laid down in the cases referred to above, each and individual cases are being considered as below:

M/s KISHORE ENTERPRISES, UNNAO

Against Form No.255024 the benefit of exemption has been disallowed on the ground that the firm was closed on 28.02.1985 and the form in question had been issued by the department on 30.11.1983 and the purchasing dealer had accepted the purchase of goods for Rs.13,625.44p. only. On this fact, it appears that the declaration form was not forged and has been issued by the department but what is required  to be enquired is,  that when the firm was closed on 28.02.1985 how the transaction was made and whether the transaction for Rs.20,05,110-/ was a genuine or not. It is also required to be enquired that under which circumstances M/s Kishore Enterprises had shown the purchases against the said form for Rs.13,625.44 p. only while the present dealer is showing the sales for Rs.20,05,110/-

In the circumstances, matter requires investigation as above and if necessary, the opportunity of the cross examination of M/s Kishore Enterprises should be allowed to the applicant.

The claim against Form No.29257 for Rs.25,30,679/-  was disallowed on the ground that this form has not been issued to the purchasing dealer. Business is alleged to have been closed on 28.2.1985, therefore, it is necessary to enquire whether the transaction was genuine or not and  whether the form is genuine or forged.

Suresh Book Depot, Gorakhpur.

The claim of exemption has been disallowed on the ground that the purchasing party has admitted the purchases of either, against one bill or two bill only and the other bills have been incorporated in the form by the seller by manipulation. In my view, on the said allegations, a proper enquiry should be made after calling upon M/s Suresh Book Depot and giving opportunity of cross examination of such party, and to adjudicate that on whose part the manipulation was made. In case if it is found that in the forms bills have been mentioned by M/s Suresh Book Depot, the claim of exemption should not be disallowed to the present dealer but if it is found that the opposite party has added the bills by manipulation the benefit of such claim should not be allowed. The genuineness of transaction may also be verified.

M/s Chandra Industrial Corporation, Ghaziabad.

The claim of exemption has been disallowed on the ground that the purchasing party has admitted the purchases of only two bills and the other bill for Rs. 50,840/- was incorporated in the form by the seller by manipulation. In my view on the said allegations, a proper enquiry should be made after calling upon M/s Chandra Industrial Corporation, Ghaziabad and giving opportunity of cross examination of such party and to adjudicate that on whose part the manipulation was made. In case if it is found that in the forms bill has been added by M/s Chandra Industrial Corporation, Ghaziabad, the claim of exemption should not be disallowed to the present dealer but if it is found that the opposite party has added the bills by manipulation the benefit of such claim should not be allowed.

M/s Envelope India, Bareilly.

The claim has been disallowed only on the ground that the Trade Tax Officer, Bareilly informed  that the Form 3-B no. 126787 was issued by  the purchasing party on 04.01.1985 relating to one of the transaction for the assessment year 1984-85 and not for assessment year 1985-86. Purchasing party has not shown any transaction of purchases in the year, 1985-86. In the form year has been cut and made 1985 and utilized said Form for the transaction which was not made by the purchasing dealer. In my opinion, matter requires further enquiry. It has to be ascertained as to who has made the cutting and whether cutting is verified by the purchasing dealer and whether transaction is genuine. Purchasing dealer may be called upon and opportunity of cross-examination be given to the present dealer.

M/s Securia Traders, Hathras

M/s Ram Narain Govind Ram, Moradabad.

M/s Strong Packaging, Moradabad.

M/s M.R. Industries, Moradabad.

In these cases the benefit of form has been disallowed by the assessing authority on the ground that the respective assessing authority had informed that the parties in question are not admitting the purchases. In these cases where parties are not admitting purchases, the genuineness of transaction and Forms are to be examined. The purchasing parties be called upon and necessary enquiries be made to decide whether transaction is genuine or not and whether Forms are genuine printed by the Department. Opportunity of cross-examination of such parties may also be given to the present dealer. In case, if it is found that Forms are genuine, printed by the Department, and transaction is genuine and Forms have been issued by the alleged purchasing parties, then merely because, such parties have not shown purchases in their books of account and not admitting such purchases, the claim of exemption cannot be denied to the present dealer. Claim of exemption can only be denied when Form is found forged and obtained as a result of collusion between parties or the transaction is bogus.

M/s National Packaging, Moradabad.

In this case claim was disallowed on the ground that the purchaser has not accepted some of the purchases and they have been alleged to have been added in the Form by the selling dealer. The claim of exemption has been disallowed on the ground that the purchasing party has admitted the purchases of either against one bill or two bills only and the other bills have been incorporated in the form by the seller by manipulation. In my view, on the said allegations, a proper enquiry should be made after calling upon M/s National Packaging, Moradabad and giving opportunity of cross examination of such party, and to adjudicate that on whose part the manipulation was made. In case if it is found that in the forms bills have been mentioned by M/s National Packaging, Moradabad, the claim of exemption should not be disallowed to the present dealer but if it is found that the opposite party has added the bills by manipulation the benefit of such claim should not be allowed. The genuineness of transaction may also be verified.

In view of the fact stated above, in my view, Tribunal has allowed the benefit of exemption without considering the reasons given by the assessing authority for disallowing the claim and without proper enquiry, which is required to be made, as stated above. I am of the view that proper enquiry stated above, can be made properly only by the assessing authority. Therefore, matter is remanded back to the assessing authority to investigate the matter afresh, as stated in each case.

In the result, revision is allowed. Order of the Tribunal is set aside and the matter is remanded back to the assessing authority to pass assessment order afresh after making proper enquiry referred to above.

Dated.18.03.2005

VS.  


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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