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TMI Blog1984 (4) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... at purchases worth Rs. 947.93 Ps. made by the dealer from one M/s. Aggarwal Company, Bombay on 18th February, 1959, were not accounted for by the dealer in his books of account. Similarly, purchases of 152 rounds and 70 pattas (iron and steel goods) from Jethalal Mohanji of Bombay in 1959 were not accounted for by the dealer in his books of account. The Sales Tax Officer also detected from the octroi books of the toll naka of Sangli that goods worth Rs. 9,580 in the year 1958-59 and Rs. 10,370 in the year 1959-60 were found to have been sent to Bombay in the name of the dealer and these transactions had not been accounted for in the dealer's account. On the basis of this material, the Sales Tax Officer rejected the books of account of the dealer and enhanced the gross turnover of the dealer by 33 1/3 per cent. From the various orders on record, it appears that the gross turnover of the dealer was increased by the Sales Tax Officer by 33 1/3 per cent. In respect of the period 1st April, 1958, to 31st March, 1959, the gross turnover of sales, as seen from the books of account, was increased from Rs. 1,90,898 to Rs. 2,54,530 and the gross turnover of purchases (as per accounts) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er cent under section 8(a) in respect of the enhanced turnover, we do not wish to disturb the same. The rest of the exemption in respect of the sales out of enhanced turnover should be worked out on the basis of the proportion of these exemptions as revealed by the books of account and accepted by the department. The quantum of purchases to be enhanced should be also worked out and classified on the same basis in the proportion of the purchases under different heads such as R.D. (Registered dealers), U.R.D. (unregistered dealers) and O.B.S. (outside Bombay sales or inter-State sales) and entries 1 to 18 of Schedule B as revealed by the books of account and accepted by the officer". (bracketed portions supplied by us). 3.. We may make out clear that the facts which we have set out aforesaid had to be gathered by us from the various orders, namely, the orders of the Sales Tax Officer, Assistant Commissioner and the Deputy Commissioner as unfortunately, the statement of the case does not set out most of the relevant facts. It should be made once again clear to the Tribunal that it is the Tribunal which is the final fact finding authority and the statement of the case prepared and fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent rates are sales of goods described in the various items in Schedule B to the said Act. In respect of these goods, sales thereof are not liable to the levy of sales tax but sales and purchases thereof are liable to the levy of general sales tax and purchase tax respectively at the rates prescribed under the said Schedule. The result is that the sales and purchases in these goods are liable to tax at reduced rates. As far as sales to registered dealers and purchases from registered dealers are concerned, section 8 provides for deduction of such sales from the turnover provided the conditions set out in the said section are satisfied. As far as question No. 1 is concerned, it will be noticed that that question pertains to bifurcation of enhanced turnover of sales in respect of the aforesaid assessment periods into tax-free and taxable turnovers and turnover taxable at lower rates on the basis of the proportion of the tax-free sales, inter-State sales and sales liable to tax at different rates or concessional rates as disclosed by the books of account of the dealer. There is no reference in that question to any bifurcation on account of sales to registered dealers at all nor is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchases of goods covered by entries 1 to 18 of Schedule B to the Bombay Sales Tax Act, 1953, lies upon the assessee?" In paragraph 12 of its order on the reference applications, the Tribunal has held that this question as well as some other questions sought to be raised by the Commissioner did not arise from the order of the Tribunal at all. No application has been made for directing the Tribunal to refer that question to us. This would show that the question of burden of proof was not agitated before the Tribunal at all and the judgment of the Tribunal on the revisional applications makes that point clear. In view of this, it is not open to Mr. Jetley to raise the aforesaid contention at all, as that contention was nowhere raised before the Tribunal. Apart from this, had such a contention been raised, the dealer would have been put on guard and might have sought to discharge the burden in such manner as he thought best. It would thus be unfair to allow the department to raise that contention here. What the Tribunal has done is to consider the pattern of sales disclosed by the books of account of the assessee to the extent that the said pattern has been accepted by the sales t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng treated as having been made from registered dealers and entitled to the benefit of the provisions of section 8 of the said Act. As we have already said, the Tribunal expressed no desire to interfere with the determination of this percentage. In view of this, there is no basis on which the Tribunal could have again directed that in respect of remaining enhanced turnover, there should be a further bifurcation on the ground that some of the purchases constituting the said enhanced turnover must have been from the registered dealers. 8.. Mr. Patel, however, contended that in a case of best judgment assessment, it was the Tribunal which had the last word as the final fact finding authority and the Court could not interfere with the decision of the Tribunal regarding bifurcation of the enhanced turnover of purchases. In support of this argument, Mr. Patel relied upon the decision of the Supreme Court in Commissioner of Income-tax, West Bengal III v. Kamal Singh Rampuria [1970] 75 ITR 157 (SC). In that case, the Supreme Court held that it is well established that the High Court is not a court of appeal in a reference under section 66 of the Indian Income-tax Act, 1922, and it is not ..... 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