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Savitri Engineering Industries v. State Of U.P. And Others - WRIT TAX No. 120 of 2000 [2005] RD-AH 1620 (12 July 2005)


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Savitri Engineering Industries, Sita Nagar. ....Petitioner


State of U.P. And others.   ....Respondents

Hon'ble R.K. Agrawal, J.

Hon'ble Rajes Kumar, J.

By means of the present writ petition, the petitioner, M/s Savitri Engineering Industries seeks the following relief :

(i) issue a writ, order or direction in the nature of certiorari quashing the notice under section 21 of U.P. Trade Tax Act issued for the year 1997-98 on 29.12.99 (Annexure 3 )..

(ii) issue a writ, order or direction in the nature of mandamus         commanding   the  respondent  no.2  to refrain from proceeding    to assess  the petitioner under section 21 of the said Act for the year 1997-98 without furnishing details of information or giving an opportunity to cross-examine the alleged supplier.

(iii) issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case.

(iv) award costs of the petition to the petitioner."

Briefly stated the facts giving rise to the present writ petition are as follows:

The petitioner is a proprietorship concern  of Smt.Savitri Agrawal and is registered dealer under the provisions of U.P. Trade Tax Act and Central Sales Tax Act. It is engaged in the business of manufacture and sale of diesel generator set. For the assessment year 1997-98, assessment proceedings were taken up by the Assistant Commissioner (Assessment), Trade Tax-VIII, Agra and after detailed examination of books of account  and other documents he had accepted the turn over vide assessment order dated 30.11.1998. According to the petitioner its business premises was surveyed on 12.08.1998 by the Assistant Commissioner (Special Investigation Branch), Trade Tax-II Unit, Agra. Certain books of account relating to the assessment year 1998-99 were seized. However, no documents, which could have been relevant for the assessment year 1997-98 were either examined or seized in the said survey. This averment is being seriously disputed by the respondents as according to them incriminating materials showing suppressed purchases of copper wire among many things was found in the said survey. Subsequent to the survey and passing of the assessment order, the Assistant Commissioner (Assessment), Trade Tax-VIII, Agra, respondent no.2 issued a notice under section 21 of the Act for assessing  the escaped turnover for the assessment year 1997-98. In the notice it was stated that  during the period 04.11.1997 to 14.12.1997the petitioner had purchased copper wire valued at Rs.6,15,053/- from M/s Copperwala for being used for the purpose of manufacture of generator/alternator which transaction has not been entered in its books of account. The Petitioner was asked to appear and show cause as to why the corresponding sales be not subjected to tax. Petitioner appeared before the respondent no.2 and filed detailed objection stating therein that it had not made any purchases from M/s Copperwala and the material and other documents relating to the said purchases be made available so that necessary reply/objection be filed. It was also stated that an opportunity to cross-examine the owners of M/s Copperwala be also afforded. Even though the petitioner was permitted to see the seized documents relating to the transactions of M/s Copperwala, the opportunity to cross examine was not afforded.  In para 5 of the counter affidavit, filed by Sri Bharat Singh, Assistant Commissioner, Trade Tax (Assessment-5), Agra it has been stated that if an application under Rule 75 of U.P. Trade Tax Rules (hereinafter referred to as "Rules") is filed for cross examination, necessary opportunity shall be provided.

Sri Kunwar Saxena, learned counsel appearing on behalf of the petitioner  submitted that in the application  dated 15.01.2000 the petitioner had made a specific request for an opportunity to cross examine the owner of M/s Copperwala. The said application was filed under Rule 75 of the Rules and therefore, the averments that if any application is filed, the opportunity to cross examine, would be provided, is merely a cover up and an after thought.

Having given our anxious consideration on the various submissions raised by learned counsel for the parties, we find that if an application under Rule 75 of the Rules is made by the assessee or any person for summoning any witness/witnesses for cross examination or any other documents,  it is incumbent in fact the duty of the assessing officer to pass necessary orders and summon the witness, documents as prayed for. Failure to do so results in failure of justice. Admittedly in the counter affidavit, the respondent no.2 has categorically stated that if any application is made under Rule 75 of th Rules for summoning the witness, necessary orders would be passed. We find that the application dated 15.01.2000 contains the prayer for summoning the owner of M/s Copperwala and therefore, the respondent no.2 ought to have exercised the power under Rule 75 of the Rules and summon the owner of M/s Copperwala for cross examination. As the main grievance of the petitioner appears to be denial of opportunity to cross examine the owner of M/s Copperwala, we dispose of the writ petition, with the direction to the Assistant Commissioner (Assessment) Trade Tax-VIII, Agra to summon the owner of M/s Copperwala under Rule 75 of the Rules  for which the application dated 15.01.2000 is already on record and thereafter, proceed for the reassessment. It is made clear that we have not examined the validity of the jurisdiction to the notice under section 21 of the Act and it will be open to the petitioner to raise such objection before the appropriate forum if so advised.




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