BAIJ NATH PRASAD Vs. COMMISSIONER SALES TAX

JUDGEMENT

(1.) These two revisions are directed against the composite order dated 17th December, 1986, passed by the Sales Tax Tribunal for the assessment years 1977-78 and 1978-79. A perusal of the impugned order passed by the Tribunal, however, shows that the account books for both the years were rejected on the basis of survey dated 4th September, 1977 which was adverse to the dealer inasmuch as at the time of survey 100 quintals of iron was found whereas in the stock register on the said date only 8 quintals of iron was shown. In this view of the matter it was submitted by the learned counsel appearing for the dealer that the account books could not be rejected for the assessment year 1977-78. He has taken me through the various orders passed by the authorities below but I find that the impugned order of the Tribunal in so far as the assessment year 1977-78 on the question of rejection of account books is concerned is concluded by findings of fact recorded by the Tribunal. I agree that under the circumstances and facts of the case the Tribunal was justified in rejecting the account books for the assessment year 1977-78. In this connection in so far as the question of rejection of account books for the assessment year 1977-78 is concerned this contention fails. As regards the question of estimate of turnover, there is no error of law involved in the same. Under the circumstances there is no merit in the revision filed by the dealer for the assessment year 1977-78.

(2.) As far as the assessment year 1978-79 is concerned there is no adverse survey. In this year although the Assistant Commissioner (Judicial) has in his order dated 29th July, 1982, referred to the survey dated 27th August, 1978 but nothing adverse was found in the said survey. The Tribunal in its impugned order also for the purposes of rejection of the account books for the assessment year 1978-79 does not rely on the survey dated 27th August, 1978. On the other hand for the rejection of account books for the assessment year 1978-79 the Tribunal has relied only on the material found in the survey dated 4th September, 1977 which was not relevant for that assessment year. It is trite law that where the material recovered in a survey relates to a year other than the assessment year, the same cannot be used for rejection of account books for the different assessment year. See Mahesh Chandra Surendra Nath v. Commissioner, Sales Tax 1972 UPTC 637, Commissioner of Sales Tax v. Umrao Lal Sheo Ratan Das 1973 UPTC 146 and Gulab Chand Jain v. Commissioner of Sales Tax 1982 UPTC 143. The first two decisions are Division Benches of this Court and are binding on me. No other material of any kind whatsoever has been pointed in the impugned order by the Sales Tax Tribunal for rejection of the account books for the assessment year 1978-79. I find that the contention raised on behalf of the dealer for the assessment year 1978-79 has force. In my opinion it was not open to the Tribunal to reject the account books of the dealer for the assessment year 1978-79, solely on the basis of the survey dated 4th September, 1977 and that too when on that date it was found that there was difference of stock only. In my opinion it was under the law not possible to reject the account books of the dealer for the assessment year 1978-79.

(3.) In the result, the revision of the assessee for the assessment year 1977-78 fails and is dismissed and the revision for the assessment year 1978-79 is allowed with a finding that the account books of the dealer are liable to be accepted for this assessment year. Under the circumstances the parties shall bear their own costs.