COMMISSIONER OF SALES TAX Vs. VISHNUCHANDRA VIPIN CHANDRA

JUDGEMENT

(1.) In this revision filed by the Commissioner of Sales Tax an issue of some importance in respect of rejection of account books for non-issuance of cash memo for petty sales arises for consideration.

(2.) The assessee carried on the business of cement, oil, mobile oil, etc., in the assessment year 1973-74. Its premises were surveyed on 25th May, 30th July and 9th September, 1973. No adverse material was found. But its account book was rejected because of higher consumption of electricity and failure to issue cash memos in respect of sales of Rs. 94,000 out of gross sales of Rs. 15,23,892.38. In appeal the explanation of the assessee of higher consumption of electricity due to wear and tear of machinery which was thirty years old was accepted. It was also held that in the earlier year even higher consumption than that shown in the year in dispute was accepted. The appellate authority further did not find any reason to reject the account books for failure to issue cash memo for petty sales specially when no adverse material was found in survey. The order was affirmed in second appeal by the Tribunal.

(3.) It has been argued by the learned standing counsel that non-issuance of cash memos by itself furnishes material for rejection of account books. Reliance has been placed on Nemi Chand v. Commissioner of Sales Tax 1981 UPTC 96, Ram Sunder Vijai Kumar v. Commissioner of Sales Tax 1981 UPTC 279 and Babu Lal Mahadeo Prasad, Chowk, Allahabad v. Commissioner of Sales Tax 1981 UPTC 31. In the last decision another decision of this Court which had taken a contrary view was noticed. The necessity however to refer the case to larger Bench is saved as none of these decisions noticed a Division Bench decision in Ramji Lal v. Commissioner of Sales Tax 1978 1978 UPTC 544 in which it was held that no adverse inference could be drawn against an assessee maintaining consolidated cash memos in respect of retail sales at the end of the day. The learned standing counsel attempted to distinguish the decision and argued that in that case at least the assessee did issue a consolidated cash memo at the end of the day. This, however, does not make any difference in law. The issuance of a consolidated cash memo in the evening or recording the consolidated sale in the account books ultimately results in the same thing, that is, no cash memo was issued at the time of sale of goods. If the issue of consolidated cash memos in the evening does not furnish material for rejection of the account books then recording of consolidated petty sales at the end of the day also cannot furnish material for rejection of the account books.