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THE COMMISSIONER, TRADE TAX U.P. LUCKNOW versus S/S KRISHNA METAL COMPANY 33/89

High Court of Judicature at Allahabad

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The Commissioner, Trade Tax U.P. Lucknow v. S/S Krishna Metal Company 33/89 - SALES/TRADE TAX REVISION No. 908 of 1997 [2005] RD-AH 855 (23 March 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.55

TRADE TAX REVISION NO.908 OF 1997

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

Versus

S/S Krishna Metal Company, Kanpur. .    .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 24th April, 1997 relating to the assessment year 1985-1986 under the Central Sales Tax Act.

Dealer/opposite party (hereinafter referred to as "Dealer") was carrying on the business of non ferrous metal scraps etc. During the year under consideration, dealer claimed that it had raised the bills from bill no. 958 to 988 for Rs. 1,15,166.09 p.only It appears that Sales Tax Officer, Mobile Squad, Ghaziabad intercepted the goods in which bill no.1828 dated 21st February, 1986 issued in favour of M/S Nawab Singh Buddha Ram, Delhi was found. On the basis of the said bill, it has been inferred that applicant must have issued the bills nos.989 to 1826 during the year under consideration and accordingly the turnover was estimated. Dealer filed appeal before the Assistant Commissioner (Judicial), Sales Tax. Appeal was allowed and the matter was remanded back to the assessing authority for fresh assessment. In the remand order it has been held that estimate was made mainly on the surmises which is not justified. It has been further held that merely on the basis of one bill inference drawn by the assessing authority that 1400 bills must have been issued, is not justified. Appellate authority directed that the assessment be made  looking into the past assessment and the other decisions and the estimate should not be on surmises. In pursuance of the order of the first appellate authority, assessing authority considered the assessment of the previous year and the subsequent year and on the basis of the bill which was found by the Mobile Squad estimated the suppressed turnover at Rs.1 lac. Deputy Commissioner (Executive) initiated proceeding under section 10-B of the Act to review the order dated 31st March, 1994 on the ground that the estimate made by the assessing authority on the basis of bill no.1826 dated 21st February, 1986 was not justified. Deputy Commissioner (Executive) was of the view that the dealer must have issued bill nos. 989 to 1826 and suppressed sales of Rs. 32,16,970.20 p during the year under consideration. Dealer filed appeal before the Tribunal. Tribunal vide impugned order allowed the appeal and set aside the order passed under section 10-B of the Act. Tribunal held that assessment order dated 31st March, 1994 was passed in pursuance of the appellate order. Tribunal also held that the appellate authority has categorically held that on the basis of one bill, inference drawn by the assessing authority that 1400 bills must have been issued during the year under consideration is not justified and, therefore, such view cannot be reviewed in the proceeding under section 10-B of the Act.

Heard learned Standing Counsel. No one appears 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. Once the appellate authority held that on the basis of one bill it cannot be inferred that 1400 bills must have been issued during the year under consideration and once the view taken by the appellate authority has become final inasmuch as no appeal against the said order was filed by the revenue, it is not open to the Deputy Commissioner (Executive) in the proceeding under section 10-B of the Act to take the different view while revising the order of the assessing authority which is based on the view of the appellate authority. In my view, it amounts to review the order of the appellate authority which is not permissible under Section 10-B of the Act and, therefore, the order passed under section 10-B of the Act was in excess of the jurisdiction. In the circumstances, there is no merit in the present revision.

In the result, revision fails and is accordingly, dismissed.

Dated.23.03.2005.

VS.


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