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TMI Blog2002 (9) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... s Sri Kunwar Saxena, learned counsel for the opposite party-respondent. 3. The brief facts necessary for the adjudication of the present revisions are that the opposite party-dealer carried on business in "deshi ghee", "sugar", "batasa", etc., of which Sri Brij Bhushan was the sole proprietor. It appears for the assessment year 1992-93, the opposite party-dealer appeared before the assessing authority and produced complete books of accounts whereby total purchases were shown at Rs. 4,72,158 and sales at Rs. 4,40,319 under the U.P. Trade Tax Act. Since deshi ghee was liable to tax at the point of purchase under section 3-D of "the Act" and such purchases had been made after furnishing form 3-Ga-2, i.e., when the purchases were tax paid, no liability of tax on purchases was admitted even on the sales of sugar, Batasa, etc., and since no inter-State sales were made, no liability of tax under Central Sales Tax Act was likewise admitted. 4.. At the time of the assessment proceedings, however, the opposite party-dealer was confronted with survey report dated February 11, 1993 made by the Trade Tax Officer (S.I.B.) at the business premises of another dealer, namely, Gongol Dugdh Utpada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e., Moradabad Sahkari Dugdh Utpadan Samiti, Dalpatpur, Moradabad (hereinafter referred to as "Moradabad dealer") and Kanpur Dugdh Utpadan Samiti, Kanpur (hereinafter referred to as "Kanpur dealer"). It was believed that the opposite party-dealer had made purchases of deshi ghee from Moradabad and Kanpur dealers like purchases made from dealer "G" and thereafter the goods were sent to Goa for sales. Taking all these circumstances into consideration, the assessing authority fixed the turnover in respect of purchases of deshi ghee liable to tax under section 3-D of "the Act" at Rs. 1,50,00,000 and that the inter-State sales liable to tax under the Central Sales Tax Act at Rs. 1,75,00,000 by assessment order dated March 29, 1996. 7.. Aggrieved by the aforesaid assessment orders, the opposite party-dealer filed appeals before the Deputy Commissioner (Appeals), Trade Tax, Meerut. It was contended on behalf of the opposite partydealer that no delivery of goods had been taken by the appellant in U.P. either from dealer "G" or from Kanpur dealer or Moradabad dealer. In fact, dealer "M" had acted as commission agent and the goods had been sent directly for sales by dealer "G", Kanpur deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty-dealer filed appeal before the Trade Tax Tribunal. The Commissioner of Trade Tax, U.P., also filed appeals against the orders of the Deputy Commissioner (Appeals) declaring the opposite party-dealer as nontaxable under the Central Sales Tax Act and the remand order in respect of U.P. 11.. All the three appeals one by the opposite party-dealer and other two by the Commissioner of Trade Tax were taken up together by learned Tribunal. The Tribunal allowed the appeal filed by the opposite party-dealer and dismissed the two appeals filed by the Commissioner, and held that in the facts and circumstances of the case, the opposite party-dealer was not liable to tax either under the U.P. or under the Central Sales Tax Act. 12.. Aggrieved by the order of the Tribunal, the present two revision applications have been filed by the Commissioner, namely, against the order of the Tribunal declaring the opposite party-dealer not liable to tax either under the U.P. or the Central Act. 13. The reasons given by the Tribunal for accepting the contentions of the opposite party-dealer are given as below: (i) The dealer "G" had entered into an agreement dated August 18, 1992 with the dealer "M" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not liable to tax (iv) The opposite party-dealer had demanded the right of crossexaminiation of the two employees of the dealer "G" before the assessing authority inasmuch as the inference against the opposite party-dealer was sought to be drawn on the basis of their statements only. The assessing authority, however, denied the right of cross-examination on the ground that the limitation for completing the assessment was about to expire. At the time of the hearing of the appeal, it was stressed on behalf of the opposite party-dealer that in case the right of cross-examination when demanded was not acceded to, the adverse material so obtained could not be taken into consideration. In support of this contention, several decisions were cited but the Deputy Commissioner (Appeals) took no decision thereon. The Tribunal observed the denial of the right of cross-examination seriously violated the principles of natural justice and in such circumstances, the adverse material obtained on the basis of the statement of the two employees could not be relied upon. (v) The Tribunal also pointed out that the aforesaid agreement between dealer "G " and dealer "M" dated August 18, 1992 had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that inasmuch as no inquires had been made in respect of Kanpur and Moradabad dealers, the matter may be remanded for making such inquiries as to how the assessing authority of these two dealers had treated these transactions. Before the Tribunal, however, copy of the assessment order passed in respect of Moradabad dealer and copy of the appellate order passed by Deputy Commissioner (Appeals) in respect of Kanpur dealer were filed which clearly indicated that the department had accepted the position that the Kanpur and Moradabad dealers had directly sent goods to dealer "M" at Goa on consignment basis. The Tribunal observed that in view of these orders passed by the departmental officers, the copies whereof were filed, there was no necessity of remanding the case to the assessing authority, as done by the Deputy Commissioner (Appeals), and in view of the aforesaid orders passed by the departmental officers, it was apparently clear that the Kanpur and Moradabad dealers like dealer "G" at Meerut had sent direct consignment from their business places to dealer "M" in Goa, and in respect of these transactions no liability could be fastened upon the opposite partydealer. 14.. On a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e registered dealer from another registered dealer shall be deducted from his gross turnover only if the purchase in question is proved not to be the first purchase. Explanation II.-For the purposes of this sub-section, in relation to purchase of foodgrains in pursuance of any order made under section 3 of the Essential Commodities Act, 1955, including any purchase in excess of the levy share, the purchase first made by a dealer from the State Government or its purchasing agent shall be the first purchase of such foodgrains and the tax shall accordingly be levied at that point on such dealer. (2) Where in respect of any goods notified under sub-section (1), the purchaser whether on his own account or on account of anyone else, is a person other than a registered dealer, there shall be levied and paid, for each assessment year or part thereof, a tax on the turnover, to be determined in the prescribed manner, of sale of such goods by the dealer who sells the goods or through whom the goods are sold to such purchaser, and the rate of tax shall be the same as notified under sub-section (1)." 17.. The main grievance of the Revenue in the present case appears to be that the Tribunal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is submitted that the Tribunal has passed its findings on relevant material and the same can by no stretch of imagination be treated as perverse. 19.. In the case of Commissioner of Sales Tax v. Triputi Tax Nit Ltd. 1986 UPTC 1049, this Court took the view that while exercising revisionist jurisdiction this Court had to focus its attention on the question whether a question of law was involved in the order of the Tribunal. The Tribunal had considered, in detail, each item of account which had been rejected by the authorities below. It had considered the explanation given by the assessee with regard to each one of them. All the findings regarding account books centred round appreciation of evidence on record, including explanation of the assessee and all the questions were primarily questions of fact, no interference was, therefore, warranted. 20.. In the case of Commissioner of Sales Tax v. Kisan Steels (Pvt.) Ltd. 1988 UPTC 296, this Court held "If (Tribunal) weighed all the pros and cons of the evidence led by both sides and then recorded its conclusion. The findings recorded by the Sales Tax Tribunal are essentially findings of facts based on appreciation of evidence. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t directly by them to dealer "M" at Goa. In regard to dealer "G" at Meerut, the Tribunal recorded a finding of fact that no delivery of goods had been taken by the opposite party-dealer at Meerut. This conclusion was specifically strengthened by the circumstances that the cross-examination of the persons on whose statement the adverse inference was drawn against the opposite party-dealer was not allowed in spite of the specific demand for the same. It may further be added that one Alok Kumar had been treated to be agent of the opposite party-dealer for taking delivery of the goods from the dealer "G" at Meerut but no inquiries whatsoever were made by the assessing authority from Alok Kumar nor was he produced for crossexamination even when it was so demanded. In these circumstances, no adverse material was there and no adverse inference could be drawn against the opposite party-dealer on the basis of the statements made by the employees of dealer "G" at Meerut. Apart from these statements, there was no other evidence to indicate even remotely that the opposite party-dealer had taken delivery of the goods at Meerut. The Tribunal, therefore, on appreciation of entire evidence rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt as an appellate authority in exercise of its jurisdiction under section 11 of "the Act" unless the law point or the question of law if any involved or it is shown that such finding of Tribunal is perverse based on no evidence, or no material on record or is otherwise arbitrary on the face of it which no court or authority could accept having regard to the prevailing facts and circumstances of a given case. The findings of learned Tribunal cannot be upset". 27.. In the facts of the present case, it is undisputed as shown by the assessment order itself, that no forms III-C were obtained by the opposite party-dealer from his assessing authority for submission to sellers. Therefore, in view of the provisions of section 3-D(7)(b), the opposite party-dealer has to be treated as unregistered dealer and, therefore, in view of the provisions of sub-section (2) of section 3-D of "the Act", the sales having been made by unregistered dealers, the selling dealer, i.e., dealer "G" at Meerut was liable to tax and not the opposite party-dealer. In view of this legal position, the liability of tax was clearly on the selling dealer, i.e., dealer "G" at Meerut. The assessing authority, in this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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