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INDIAN OXYGEN LIMITED versus COMMISSIONER, TRADE TAX, U.P. LUCKNOW

High Court of Judicature at Allahabad

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Indian Oxygen Limited v. Commissioner, Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 2599 of 2005 [2006] RD-AH 14785 (30 August 2006)

 

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

Court no. 22

Trade Tax Revision no. 2599 Of 2005.

AND

Trade Tax Revision no. 2600  Of 2005.

Indian Oxygen Limited, Ghaziabad. ... Revisionist.

Versus

Commissioner, Trade Tax, U. P. Lucknow.....      Opp. Party.                

Hon'ble Rajes Kumar, J.

These two revisions under section 11 of U.P. Trade Tax Act (hereinafter referred to as the "Act") are directed against the order of Tribunal dated 21st   October, 2005 relating to the assessment year 1982-1983 under the U. P. Trade Tax Act as well as under the Central Sales Tax Act respectively.

Applicant claimed to be a manufacturer of Oxygen Gas and was also dealing with other Gases.  Applicant claimed to have maintained books of account in the regular course of business.  It appears that ex-parte assessment orders were passed against the applicant.  In appeals, matter were remanded back to the Assessing Authority to pass assessment orders afresh after giving proper opportunity of hearing.  The Assessing Authority had given several opportunities to the applicant to produce the books of account, but it appears that the books of account could not be produced and even reply to the Show-cause-notice were not given.  Exemption claimed by the applicant also could not be substantiated by producing the books of account.  The Assessing Authority found that there was a huge difference between the return turnover and book turnover and the same could not be explained.   The Assessing Authority further held that the dealer was found importing goods from outside the State of U. P. on 08.02.1983 without the declaration Form, bill, and builty etc. and the goods were seized and subsequently released on furnishing of security.  The Assessing Authority further observed that on several occasions, applicant was found importing goods from outside the State of U. P. without the requisite documents and the goods were seized by the Mobile Squad, which were subsequently released on furnishing of security.  On these grounds, the books of account were rejected and the turnover were enhanced.  Applicant filed appeals before the Deputy Commissioner (Appeals), Kanpur.  The Deputy Commissioner (Appeals), Kanpur vide its order dated 06.01.1996 allowed the appeals in part.  The First Appellate Authority has confirmed the rejection of books of account and has reduced the turnover.  Being aggrieved by the order of the First Appellate Authority, the applicant as well as the Commissioner of Trade Tax filed appeals before the Tribunal.  The Tribunal by the impugned order, rejected the appeal of the applicant as well as the Commissioner of Trade Tax.

Heard Sri Subhash Sen learned Counsel for the applicant assisted by Sri Bala Krishna Narayana, learned Counsel for the applicant and learned Standing Counsel.

Learned Counsel for the applicant submitted that the books of account could not be produced before the Assessing Authority because, the same were not available with the Company.  He further submitted that the goods, in which, the applicant was dealing, were the excisable goods under the Central Excise Act.  The return filed by the applicant under the Central Excise Act have also been accepted.  He submitted that there was no justification for enhancement of turnover.  Learned Standing Counsel relied upon the order of the Tribunal and submitted that in the absence of books of account, the Assessing Authority had no option except to estimate the turnover by way of best judgment assessment and the turnover had been estimated on the ground that the applicant was found importing goods without the declaration Form with an intent to evade tax and also claim of exemption could not be substantiated.

Having heard learned Counsel for the parties and have perused the order of the Tribunal and the authorities below.

I do not find any error in the order of the Tribunal.  Admittedly, the applicant could not produce the books of account before the Assessing Authority despite several opportunities was given.  Reply to the Show-cause-notices were also not given, therefore, the Assessing Authority had no option except to assess the dealer by way of best judgment assessment.  Perusal of assessment orders reveals that there was substantial difference in the return turnover and book turnover, which could not be explained.  Applicant was also found importing goods without the declaration Form and without the requisite documents.  Applicant also could not produce the documents to substantiate the claim of exemption.  In these circumstances, the Assessing Authority had no option except to estimate the turnover by way of best judgment assessment.  Before this Court also, learned Counsel for the applicant is also not able to explain any of the grounds taken by the Assessing Authority for estimating the turnover and to substantiate the claim of exemption.  The question of estimate is a question of fact, which does not require any interference by this Court.

With the aforesaid observations, both the revisions stand dismissed.

Dt:30.8.2006.

MZ/-


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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