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TMI Blog1974 (11) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... Intelligence Branch 7,8,9 respectively being attendance registers of labourers from 31st March, 1969 to 19th Jan., 1970, of the factory staff, from 1st April, 1969 to 20th Jan., 1970, of Gaddi Staff from 1st April, 1969 to 20th Jan., 1970. The regular rokar, also seized was numbered by the I.B. as serial 3. 1. It was held by the I.B. and the AO that seized books nos. 1 and 2 ere not private accounts of attendance of labourers and other workers engaged in the construction of the residence and maintenance of 32 bighas of agricultural lands of Shri Hari Pd. Santhalia, partner of Hanuman Mills only. The second I.B. Report dt. 23rd Aug., 1971 on inspection dt. 18th May, 1971 proved that not less than 25 persons i.e. 14 in excess of those usually shown as daily employed, were seen working in the mill. This I.B. report added that one labourer, Siba, son of Sipahi, denied that he ever stated before the Superintendent of Commercial Taxes that he was exclusively employed as domestic labourer of the partner Shri Hari Prasad Santhalia. Further, it appeared that somebody also posed as Siba when questioned by the Superintendent of Commercial Taxes in course of preliminary hearing. 2. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of Sri B.P. Rajgarhia, Advocate for the petitioner and Sri Tarkeshwar Pd., Advocate for the State of Bihar. Instead of reproducing all their arguments, I shall proceed to give my findings straightway thus Some salient feature of this case may be noted : (a) The account-books of the petitioner were accepted and no fault whatsoever was found with them (b) The seizure made by the I.B. of nine books on 20th Jan., 1970 also led to no discovery of any suppressed accounts. Only two books (nos. 1 and 2 both were attendance registers) c ould be made use of : (c) The AO struggled hard to make use of this I.B. Inspection report (20-1-70), but finding it difficult to turn it into a basic material upon which the bet assessment judgment be justified, he resurected the report of the I.B. by making use of another inspection report dt. 20th March, 1971 of Sri A.N. Lal A.SCT. 3. The report of Sri A.N. Lal, A.SCT. dt. 20th March, 1971 does not belong to the assessment year under examination. This report was also made use of behind the back of the assessee without giving him adequate opportunity to rebut the material contained in it. 4. Keeping in view some salient features mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t judgment. 7. The examination done in this case by the AO calls for some comment. It is of utmost importance to remember that the basic material relating to assessment year must be first and foremost accounts material relating to the year under assessment. The AO first of all has proceeded to make use of non-accounts material which can become good material provided it helped him link up the non-account materials with account material to reject the account book directly and not indirectly. In this case, not merely have non-account book been used but strangely the account book have not been directly rejected without even an iota of defect in them and assessment through best judgment has been resorted to without finding any fault with the account books. 8. Sec. 16 of the B.S.T. Act, 1959 (hereinafter called the Act) repeatedly refers to production of "Accounts and other evidences", to assess the amount of tax due. For the assessment of tax due the basic account figures can be got directly from the account books produced, directed or seized. Such account figures may also be got indirectly by first examining other evidence (other than account-books) as in this case and from them tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count books to find out some position material. It should be noted that the account books should be the source and something positive and concrete pertaining to the books of account should be placed on records as decided by the Allahabad High Court (30 STC 374, Shambhu Ratan Salendar Kumar vs. Commissioner, Sales Tax, U.P. 30 STC 390 : Maha Shakti Oil Mills vs. Comm. Sales Tax, U.P. Lucknow). 10. I, therefore, decide that the enhancement done in this case must be knocked off and I direct that for the asst. yr. 1969-70, the petitioner shall be assessed on the returned gross turnover returned (of Rs. 9,74,150/54 only). In the result therefore, the application is allowed. S. NARAIN, CHAIRMAN: The learned Dy. CIT has based his finding that suppression of sales has been proved and on his further finding that it was proved that the seized Books Nos. 1 and 2 established the suppression of the real number of labourers, the real amount of wages, the real production and naturally, the sales from his order books of account. The seized book nos. 1 and 2 are attendance registers of labourers and indicate payment made to them. They do not indicate the production of dealer s mill. These b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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