Allahabad High Court
M/S Ram Vilas Narendra Kumar Dal Mandi ... vs Commissioner Of Commercial Tax ... on 18 February, 2020
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 26 Case :- TRADE TAX REVISION No. - 151 of 2014 Revisionist :- M/S Ram Vilas Narendra Kumar Dal Mandi Rakabganj Lucknow Opposite Party :- Commissioner Of Commercial Tax U.P.Commerciat Tax Bhawan Counsel for Revisionist :- Anand Dubey Counsel for Opposite Party :- C.S.C. Hon'ble Alok Mathur,J.
Heard Mr. Anand Dubey, learned counsel for the petitioner as well as Mr. Rohit Nandan Shukla, learned Standing Counsel appearing for the respondents.
By means of this Revision the revisionist has assailed the order passed by the Commercial Tax Tribunal, Lucknow dated 18.07.2014, whereby the second appeal preferred by the revisionist has been rejected and the order passed by the First Appellate Authority dated 05.12.2009 has been upheld. It has been submitted by the counsel for the revisionist he is a registered dealer and engaged in trading of Kirana, Supari etc. in the name and style of M/s Ram Vilas Narendra Kumar at Dal Mandi, Rakabganj, Lucknow. The applicants business was running properly and the return of turnover was being filed regularly, and no irregularity was ever found in filing of return. In the year under consideration in the month of April, May, June, July, August and September provisional order of assessment was passed on the basis of sample obtained by the Check Post Authorities. The Assessing Officer, enhanced the turnover of Supari applying the price at the rate of Rs.90/- per kg instead of 45 per Kg as disclosed by the revisionist in the return.
The revisionist preferred a First Appeal before the Joint Commissioner Appeal-II, Commercial Tax, Lucknow, wherein he has recorded that revisionist has disclosed the sale of Supari at the rate of 44-45 per kg and instead the Assessing Authority was of the view that revisionist has undervalued the price of the said product, which according to him was Rs.90/- per kg only with a view to evade tax, and therefore, he has rejected the books of account of the revisionist and passed best judgment assessment on the basis of sale price of Supari at the rate of Rs.90/- per kg.
The Tribunal considering the above submissions have also recorded that the revisionist has disclosed the total turn of Rs. 1,21,73,023/- and the taxable amount of Rs. 1,09,40,983/- . The revisionist has disclosed the average selling price of Supari was Rs.44-45 per kg instead of Rs.90 per kg as accepted by the Assessing Authority and the addition of Rs. 11,00,000/- was made by the Assessing Authority. The Tribunal has recorded the fact that revisionist had thereby under valued the selling price with regard to the best judgment assessment made by the Assessing Authority and fixing Rs. 90/- per kg as selling price. It has been recorded that the Assessing Authority has obtained various evidences in this regard and proceeded to dismiss the second appeal preferred by the revisionist. The main contention of the revisionist is that in the entire proceedings either before the Assessing Authority, First Appellate Authority or the Tribunal, there is no mention as from where and in what manner a satisfaction was recorded by the Assessing Authority fixing the sale price of Supari at Rs. 90/- per kg instead of Rs. 44-45 per kg as disclosed by the revisionist.
A perusal of the assessment order dated 28.11.2008 only states that on inquiry the sale value was found to be Rs. 90/- per kg, but no detail from which said figure has been arrived at has been discussed or stated by him. Even the first appellate authority has no where discussed as to in what manner the sale price was fixed by the Assessing Authority and even the Tribunal has only used the terminology "various evidence" obtained by the Assessing Authority the price was fixed.
The learned Standing Counsel on the other hand has also submitted that the sale price of Rs.90 per kg has been clearly passed by the Assessing Authority after taking various evidences, but fairly submits that the Assessing Authority has not disclosed the details of the evidence relied upon him by fixing the sale price.
I have heard the learned counsel for the parties and perused the record.
The following question of law arises in the instant revision.
"1. Whether, on the facts and circumstances of the case the impugned order passed by Learned Commercial Tax Tribunal Bench-1 is sustainable in the eyes of law as the same is based upon presumption, whereas the revisionist has adduced relevant evidences and material to show the price of the goods of local market where the transaction has taken place and the same should have verified by the authorities concerned, however the Learned Commercial Tax Tribunal Bench-1 has totally ignored the material on record and passed the impugned order?"
The Assessing Authority has rejected the books of account of the revisionist solely on the ground that he had under valued the sale price of Supari in his return filed for the assessment year 2006-07. The Assessing Authority has passed his best assessment judgment on the basis that the sale price of Supari was Rs.90 per kg. Perusal of the assessment order fairly indicates that he has not discussed or given any details as from what source and in what manner he has fixed sale price of Supari at Rs.90 per kg.
Similarly the First Appellate Authority, Second Appellate Authority have failed to consider this plea raised by the revisionist and therefore both these orders suffers from non application of mind. It was the duty of the quasi judicial authority, i.e. First Appellate Authority as well as the Tribunal to consider all the aspects of the question of law and fact raised by the Assessee. Both the authorities having failed to address and consider the issue with regard to the sale price of Supari in its correct perspective, and failed to taken into the account the source from which the Assessing Authority purportedly fixed the sale price of Supari at Rs.90 per kg, which indicates that the orders are erroneous and are liable to be set-aside.
The entire assessment order has been passed solely on the basis of sale price of Supari being Rs.90 per kg, rather Rs. 44-45 per kg as recorded in the books of accounts produced by the assessee. The very basis of the entire proceedings lacks bonafide as well as suffers from lack of consideration of relevant material for forming a satisfaction before fixing the sale price.
The entire exercise undertaken by the assessing authority in rejecting the books of account and subsequently carrying out best judgment assessment is on the basis that the price of Supari is Rs. 90/-. No material has been disclosed from which the assessing authority could determine the said price. Not only the material should have been duly considered by him in his order, but due opportunity should be provided to the assessee to rebut the same. In absence of due disclosure of the material which resulted in formation of opinion, the order of the Assessing Authority is clearly vitiated, as well as the First Appellate Authority and the Tribunal.
I am of the considered view, that the order Commercial Tax Tribunal, Lucknow dated 18.07.2014 deserves to be set-aside and the matter is remanded to the Assessing Authority to pass a fresh order after giving an opportunity of of hearing to the petitioner within a period of three months from the date of production of a certified copy of this order in accordance with law.
With the aforesaid direction, the writ petition is allowed.
Order Date :- 18.2.2020 A.K. Singh (Alok Mathur, J.)