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TMI Blog2008 (7) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... osite party, it failed to participate in the assessment proceedings. Consequently, the assessing authority by the order dated October 21, 1995, after rejecting the contentions of the dealer that the said turnover is not taxable, levied the tax to the tune of Rs. 2,57,900. The case set out by the dealer-opposite party was that it had made purchases within the State of U. P. and since the oil is taxable at the point of "manufacture" or "import", no liability can be fastened on it. The assessment order was challenged before the Assistant Commissioner (Appeals) in Appeal No. 535 of 1995. The appellate authority reduced the turnover, but upheld the rejection of the account books. The matter was carried to the Tribunal by the applicant as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand, supports the order of the Tribunal and submits that the findings recorded by the Tribunal are basically findings of fact and as such, no interference is called for. Considered the respective submissions of the learned counsel for the parties and perused the record. It is an admitted case of the dealer that it did not produce any account books for verification in the assessment proceedings. Earlier the assessment order was framed ex parte which was set aside by the first appellate authority with the direction to give opportunity to the dealer. Again when the matter was taken up after remand, the dealer-opposite party failed to participate in the assessment proceedings. The assessing officer found that on the earlier occasion, a list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void the payment of tax, the dealer-opposite party has come up with the case that it purchased the oil from those firms. The plea of the dealer, thus, was found bogus. The matter was again re-examined in detail by the first appellate authority. The first appellate authority, on fresh consideration of the material, reached the conclusion that five selling dealers from whom the dealeropposite party alleged to have made the purchases worth Rs. 26,36,523 do not exist and as such, the purchases could not be verified. However, it granted some relief with respect to the purchases which were verified and allowed the appeal in part. Strangely enough, the Tribunal has confirmed the findings recorded by the authorities below to the effect that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not exist. Opportunity was given by the assessing authority to the dealer-opposite party to establish its claim that it made the purchases from the aforestated firms, but it failed to avail of the said opportunity or establish it otherwise. It was in the special knowledge of the dealer-opposite party as to from whom it has made the purchases. The said fact, being in the special knowledge of the dealer, it was required to be proved by the dealer, as provided for by section 12A of U.P. Trade Tax Act, 1948. Section 12A is in two parts. In the first part it provides that in any assessment proceedings, when any fact is in special knowledge of the assessee, he should prove it. Burden of proving the existence of circumstances bringing the case w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after importing it. In both these cases the commodity was taxable at the hands of the "manufacturer" or at the point of "import". In absence of any such finding, the court took the view that burden did not lie on the assessee to establish that the commodity sold by him was not imported. The decisions rendered therein are on the facts of those cases. The other aspect of the case is that section 12A was not brought to the notice of the court. For the same reason the decision given in the case of Commissioner of Sales Tax v. Mala Ram [1987] UPTC 471 is also not applicable to the facts of the present case. The Tribunal was not justified in setting aside the order passed by the first appellate authority. The Tribunal has committed another er ..... X X X X Extracts X X X X X X X X Extracts X X X X
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