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TMI Blog1970 (2) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessing authority came to the conclusion that out of 28 vehicles, 24 vehicles valued at Rs. 5,84,252.35 had been sold within U.P. and he, therefore, enhanced the assessee's net turnover to that extent. It appears that the Sales Tax Officer (S.I.B.) carried out certain investigation to find out if the vehicles alleged to have been sold by the assessee at Solan were really sold at Solan or were sold inside U.P. In the course of such investigation statement on oath of the manager of K.T. Financiers, Hazratganj, Lucknow, who had financed certain purchasers of the vehicles, was taken and likewise statements of some purchasers were also recorded. The Sales Tax Officer (S.I.B.) submitted a report to the assessing authority on the basis of which the Sales Tax Officer held that out of 28 vehicles, 24 vehicles alleged to have been sold at Solan were in fact sold inside Uttar Pradesh. The assessee during the course of assessment proceedings had applied for a copy of the report of the Sales Tax Officer (S.I.B.), and had also requested that the witnesses, who were examined by the Sales Tax Officer (S.I.B.) behind the back of the assessee, should be summoned and be examined in its pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of the case the assessee can be said to have been afforded a reasonable opportunity to meet the case against him. It cannot be laid down as a matter of law that a witness examined by the Sales Tax Officer can never be summoned for cross-examination. The question would always depend upon the circumstances of each case. In the instant case we find from the assessment order that the assessee in support of its claim had produced the following documentary evidence: (a) In the goods account the vehicles were shown to have been transferred to Solan branch. (b) Temporary transit insurance was also obtained for sending the vehicles to Solan from Bombay. (c) Export charges for transporting vehicles to Solan were also debited and necessary vouchers were also obtained. (d) Octroi receipt for vehicles were obtained at Solan octroi post for the entry of each vehicle. (e) Cash memos. were issued on the printed forms of Solan branch. (f) On delivery chalans of Solan branch, signatures were obtained from the purchasers in support of their plea that the customers had actually gone to Solan and took the delivery of the vehicles there. The assessing authority rejected all this evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be observed before the result is arrived at. In other words, the assessee would have a right to inspect the record and all relevant documents before he is called upon to lead evidence in rebuttal." In Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal[1954] 26 I.T.R. 775 (S.C.)., the Supreme Court set aside an assessment order where this fundamental principle of natural justice was violated. We are of opinion that the same principle would apply to the proceedings under the U.P. Sales Tax Act. The provisions relating to the assessment contained in section 7 read with rule 41 are in pari materia with the corresponding provisions of assessment under section 23(3) of the Income-tax Act, 1922. Under section 37 of the Income-tax Act, an Income-tax Officer has all the powers of a civil court for purposes of enforcing the attendance of any witness etc. and similar powers have been conferred on the Sales Tax Officer under rule 75 of the U.P. Sales Tax Rules, which provides that the Sales Tax Officer...shall have the same powers as are vested in a court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely, (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, rejected." To ask the assessee to file a written statement is not the same thing as to give him an opportunity of leading evidence in rebuttal. The fact that certain witnesses had changed their original statement or other witnesses were likely to do so is no ground for refusing to summon them for cross-examination. In fact this state of affairs shows very clearly that the testimony of those witnesses required to be tested by cross-examination before it could be used against the assessee. The revising authority while dealing with the contention of the assessee has observed in its revisional order: "It was argued on behalf of the opposite party that certain witnesses gave wrong statements behind the back of the opposite party. If that was so, it was open to the opposite party to produce their affidavits or subsequent statements in order to controvert the testimony before the assessing officer. This was not done. I am of opinion that full opportunity was given to the opposite party to meet the case against him and he is not entitled to cross-examine any witness." The approach of the revising authority is again wrong. Evidently the assessee wanted the witnesses to be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision." In view of this authority it is futile to contend for the revenue that because the Sales Tax Officer is not a court and is not bound by the rules of evidence, therefore, the assessee is not entitled to have a witness examined in his presence where the statement of such a witness recorded at the back of the assessee is sought to be used against him and particularly where the statements of the witnesses concerned in this case are at variance with the documentary evidence in possession of the assessee. We are of opinion that the view taken by the Judge (Revisions) is not correct and the appellate authority approached the matter from a right angle when it remanded the matter to the assessing authority to afford an opportunity to the assessee to cross-examine the witnesses. For the reasons stated above, we answer the question in the affirmative in favour of the assessee and against the department. The assessee is entitled to its costs which we asses ..... 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