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TMI Blog2006 (11) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn. - Civil Appeal No. 4913 of 2006, S.T.R. No. 928 of 1992 - - - Dated:- 13-11-2006 - ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA JJ. Kavin Gulati, Sanjay Bishen and Kamlendra Mishra, Advocates for the appellants. Vikas Singh and Hari Shankar, Advocates for the respondent. -------------------------------------------------- "JUDGMENT This is a revision under section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as 'the Act') against the order of the Tribunal dated January 21, 1992 relating to assessment year 1984-85. The applicant was carrying on the business of manufacturing and sales of bricks and stated to have maintained books of the account in the regular course of business and such books of account have been produced before the assessing authority, which were examined by him. However, on the ground that the books of account were not produced at the time of two surveys dated March 29, 1984 and March 30, 1985, the books of account were rejected and by best judgment assessment turnover was enhanced. The first appeal filed by the applicant was allowed in part. The applicant filed second appeal before the Tribunal, which was furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 11 of the Uttar Pradesh Trade Tax Act, 1948 (in short, "the Act"). The dispute relates to the assessment year 1984-85. The High Court set aside the order passed by the Sales Tax Tribunal, Agra (in short, "the Tribunal") in Second Appeal No. 129 of 1989. High Court by the impugned order observed that the rejection of accounts on the ground that books of account were not produced at the time of survey conducted on March 29, 1984 and March 30, 1985 was really of no consequence since no defect was specifically pointed out in respect of books of account produced at the time of assessment. The factual position in a nutshell is as follows: Respondent (hereinafter referred to as "the assessee") at the relevant point of time was carrying on business of manufacturing and sales of bricks. Two surveys were conducted in the business premises of the respondent on March 29, 1984 and March 30, 1985. But the books of account were not produced on either of the dates. The assessing officer was of the view that non-production of books of account at the time of these surveys established that books of account were not maintained in the regular course of business and, therefore, were liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal was dismissed. The assessee filed revision application before the High Court. As noted above, by the impugned judgment the learned single Judge allowed the same. In support of the appeal, learned counsel for the appellant submitted that the High Court proceeded on erroneous premises to hold that the only ground for rejection of books of account was non-production of books of account at the time of survey. As elaborately dealt with by the Tribunal, that was not the only ground. Even otherwise the High Court's view if accepted will render sections 12 and 13 of the Act redundant. It is also pointed out that section 11 of the Act confers limited jurisdiction on the High Court to interfere only on the question of law. The High Court should not have interfered with the findings of fact while exercising the revisional jurisdiction. The learned counsel for the assessee on the other hand supported the order of the High Court. We shall first deal with the power of the High Court in dealing with the revision petition. Section 11 of the Act reads as follows: "11. Revision by High Court in special cases. (1) Any person aggrieved by an order made under sub-section (4) or sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it stood immediately before the said date, such authority shall, as soon as may be, make reference accordingly. Every reference so made, and every reference made by such authority before the said date in compliance with the requirement of the High Court under sub-section (4), as it stood before the said date, shall be deemed to be an application for revision under this section and disposed of accordingly. (6-A) Where the revising authority or an additional revising authority has, before the said date, allowed an application under sub- section (1) or sub-section (3), as they stood immediately before the said date, and such authority has not made reference before the said date, it shall, as soon as may be, make reference to the High Court. Every such reference, and every reference already made by such authority before the said date and pending before the High Court on the said date, shall be deemed to be an application for revision under this section and disposed of accordingly. (7) Where an application under this section is pending, the High Court may, on an application in that behalf, stay recovery of any disputed amount of tax, fee or penalty payable, or refund of any am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustained." Apart from the fact that the High Court proceeded on erroneous premises to hold that rejection of accounts was only on the ground of non- production of accounts at the time of survey, the conclusions are also not otherwise sustainable. Sections 12 and 13 of the Act are relevant for the purpose. They read as follows: "12. Accounts to be maintained by dealers. (1) Every dealer including a dealer exempted from tax on payment of fee under any provision of the Act, shall keep and maintain a true and correct account showing the value of the goods sold and bought by him, and in case the accounts maintained in the ordinary course do not show the same in an intelligible form, he shall maintain true and correct account in such form, as may be prescribed in this behalf: Provided that this section shall not apply to such dealers as are not liable to taxation under this Act. (2) A manufacturer liable to pay tax under this Act shall, in addition to the accounts referred to in sub-section (1), maintain stock books in respect of raw materials as well as the products obtained at every stage of production: Provided that in the case of any class of manufacturers, the aggregat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the account, register or document, affix his signature and his official seal at one or more places thereon, and in such case the dealer or the aforesaid person will be required to mention in the receipt given by him, the number of places where the signature and seal of such officer have been affixed on each account, register or document. (3-A) Notwithstanding anything contained in sub-section (3), the officer seizing any account, register or other document under that sub-section may, for reasons to be recorded by him in writing and with the prior approval of the Commissioner, retain such account, register or document for such period not extending beyond thirty days from the date of completion of all the proceedings under this Act in respect of the years for which they are relevant as he deems necessary. (4) For the purposes of this section, the officer authorised there\under may enter and search any place of business or vehicle, or any other building or place where he has reason to believe that the dealer keeps or is, for the time being, keeping, any books, registers, documents, accounts or goods relating to his business: Provided that no residential accommodation (not bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of sections 100 and 165 of the Code of Criminal Procedure, 1973 shall, 'as far as may be' apply in relation to any entry, or search or inspection under this section, as they apply in relation to any inspection or search under the said Code. Explanation . In calculating the period specified in sub-section (3) the period during which proceedings, under this Act remain stayed under the orders of any court or authority shall be excluded." Power to order production of accounts and powers to entry and inspection are provided in section 13. An officer empowered by the State Government for the purpose of the Act may require any dealer to produce before him any book, document of the business and may inspect and make such enquiries from the dealer relating to his business as necessary. Section 7(3) empowers the assessing officer to make an assessment to the best of his judgment if no return is submitted or return submitted by the assessee appears to him to be incorrect or incomplete. As noted above, section 12 mandates a dealer to keep and maintain true and correct accounts. Obviously, the books of account are to be kept at the place of business. If they are not kept at the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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