YADURISH RAI JHUN JHUNWALA Vs. COMMISSIONER SALES TAX

JUDGEMENT

(1.) This revision arises out of an order dated 15th April, 1983, passed by the Sales Tax Tribunal, Lucknow, for the assessment year 1978-79.

(2.) The assessee is a dealer in oil-seeds, kalaunji, ramdana, dhania and fertilisers, etc. During the assessment year in question the business was carried on under the sole proprietorship of Sri Yadurish Rai Jhun Jhunwala, the applicant. The dealer had maintained during the said year roker, ledger account, nakal bahai, hath bahi, satti bahi, uchant bahi, stock register, purchase vouchers, invoices and bill books, etc. The Sales Tax Officer had rejected the book version of turnover shown by the assessee and the same was confirmed by the Assistant Commissioner (Judicial) as well as the Sales Tax Tribunal. In the impugned order the Sales Tax Tribunal had relied upon two reasons for confirming the order passed by the Assistant Commissioner (Judicial). The first is that in survey dated 31st July, 1978, on the spot the stock of six bags of kalaunji valued by the department at Rs. 2,500 was found in excess and that stock of 41 quintals of dhania was found less which was valued by the department at Rs. 7,000. The explanation furnished in this regard by the dealer before the sales tax authorities as well as before the Tribunal was not believed by the Tribunal mainly on the ground that the survey note dated 31st July, 1978, had been signed personally by the dealer himself and the explanation which is now sought to be furnished at the stage of assessment is not credible. The second reason stated by the Tribunal for rejection of the account books was that the explanation which was sought to be furnished at the time of assessment was not given at the time of survey. It is only on these two grounds that the Tribunal has upheld both, the rejection of accounts as well as the enhancement of turnover.

(3.) The dealer has filed a photostat copy of the survey note dated 31st July, 1978 (annexure 2 to the revision). He has also filed a typed copy of the same as annexure 3 to the revision. A perusal of the said survey note shows that it was Sri Deoki Nandan, brother of Sri Yadurish Rai, the dealer, who was actually present on 31st July, 1978, at the time of survey and it is Deoki Nandan who had signed the said survey note. I also find from paragraph 6 of the order dated 30th October, 1981, passed by the Assistant Commissioner (Judicial) which mentions that the survey dated 31st July, 1978, was made in the presence of the aforesaid brother of the assessee and that the survey note contains the signature of Deoki Nandan and not of the dealer. In this view of the matter the Sales Tax Tribunal is in error in its finding that the survey note was signed by the assessee himself, and, therefore, the Tribunal has drawn on erroneous conclusions which are not warranted by law.