Allahabad High Court
M/S Ayyub Traders vs Commissioner Commercial Tax U.P. ... on 20 September, 2019
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 59 Case :- SALES/TRADE TAX REVISION No. - 140 of 2009 Revisionist :- M/S Ayyub Traders Opposite Party :- Commissioner Commercial Tax U.P. Lucknow Counsel for Revisionist :- Krishna Agarwal Counsel for Opposite Party :- C.S.C. Hon'ble Saumitra Dayal Singh,J.
1. Heard Shri Krishna Agarwal, learned counsel for the assessee and Shri Jagdish Mishra, learned Standing Counsel for the revenue.
2. Present revision has been filed by the assessee against the order of the Commercial Tax Tribunal, Saharanpur dated 27.01.2009 passed in Second Appeal No. 10 of 2007 for A.Y. 2005-06 (U.P.). By that order, the Tribunal has dismissed the appeal filed by the assessee and thus sustained the first appeal order that has estimated the undisclosed turnover of sales made by the assessee as Rs. 5,25,000/- as against Rs. 35,00,000/- made by the assessing officer.
3. The revision has been pressed on following questions of law:
"(i) Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in confirming the rejection of books of account?
(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in estimating the turnover and tax at such excessive rate?"
4. Learned Standing Counsel has submitted that other than the two bills disclosing sale of Rs. 5,520/-, there were other material as have been discussed in the impugned order. However, perusal of the same reveals that at the time of making the estimation, the appeal authority had only considered the two bills disclosing the sale value Rs. 5,520/- only.
5. Having heard learned counsel for the parties and having perused the record, in the first place, in face of two bills having been discovered from the business premises of the assessee during the survey conducted on 21.01.2006 that were not found accounted for in the regular books of accounts of the assessee, the conclusion of rejection of books of accounts cannot be faulted. That finding of fact arises from material and evidence on record, as has been considered by the authorities.
6. Accordingly, question of law no. (i) is answered in the affirmative, i.e. in favour of the revenue and against the assessee.
7. Insofar as estimation of turnover is concerned, normally, this Court does not interfere if such an estimation is found arising from material and evidence on record, however, in the present case, other than the two undisclosed bills recording transactions worth Rs. 5,520/- (in all), there is absolutely no material considered by the assessing officer or the appellate authority for the purposes of making an estimation. It is a settled position in law that the estimation made must arise from and be proportionate to the evidence of undisclosed turnover. In the instant case, as against the undisclosed turnover Rs. 5,520/- discovered, that too, on one date, i.e. 01.01.2006, the estimation as has been sustained, bears no proportion being Rs. 5,25,000/-. The same cannot be sustained.
8. Normally, this Court would have remanded the matter to the fact finding authority to record a proper finding of its own, however, the Court cannot lose sight of the fact that the assessment year in question is 2005-06 and almost 14 years have passed since then. If the matter were to be remitted today, largely, it would be a waste of time, inasmuch as the assessment had arisen under the U.P. Trade Tax Act, 1948 that came to be repealed by the U.P.V.A.T. Act which, in turn, has come to be repealed by the G.S.T. Act, 2017.
9. Thus, to bring a closure to an old dispute wherein the assessee appears to have a genuine grievance and not to set a rule as to the estimation to be made, the estimation of undisclosed turnover be pegged at Rs. 50,000/-. The assessment may stand concluded accordingly. Question of law no. (ii) is answered accordingly.
10. The revision is partly allowed.
Order Date :- 20.9.2019 AHA