9911796707
TMI Blog2008 (7) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... he book version of the dealerapplicant, specially when the said purcha was not recovered from the possession of the applicant and was allegedly recovered from the possession of the third party who had no connection with the applicant. The authorities below including the Tribunal, thus were not justified in not accepting the book version of the applicant. Their finding in this regard is vitiated as it has been based on no legal evidence. Viewed as above, it is held that the Tribunal was not justified in restoring the assessment order and upholding the rejection of the account books.The first question is decided accordingly and the second question does not require any adjudication. The revision succeeds and is allowed. The order of the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to Rs. 10,00,000. The Department as well as the dealer both preferred separate second appeal before the Tribunal which have been disposed of by a common order under revision. The Tribunal as mentioned above has set aside the order of the first appellate authority and restored that of the assessing officer. The learned counsel for the applicant submits that the authorities below including the Tribunal were not justified to reject the account books which have been maintained by the dealer truly and correctly in the ordinary course of business. On the basis of only one document, namely, cash memo No. 7090 dated March 13, 2002 for Rs. 12,760 the account books of the appellant were rejected. The said document was not recovered or found from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged cash memo was seized and in not confronting the document to the applicant? (ii) Whether, on the facts and circumstances of the case, the Tribunal was justified in law in upholding the order of the Assistant Commissioner (Trade Tax), Sector 7, Varanasi increasing the sales turnover of the revisionist beyond twenty per cent in view of the decision of the honourable court in Purana Toha Bhandar Auraiya v. C.T.T., U.P.? The Tribunal has not noticed any defect in the maintenance of the account books of the applicant. There is no finding by the authorities that the applicant has not maintained the account books truly and correctly in the ordinary course of the business. It is not the case of the Department that the return filed by it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee is incorrect or incomplete, the assessing authority shall, after making such inquiry as he considers necessary, determine the turnover of the dealer to the best of his judgment and assess the tax on the basis thereof, as provided by sub-section (3) of section 7 of the Act. Under the proviso to sub-section (3) of section 7, the onus lies on the dealer to prove the correctness and completeness of the return submitted by it and for that purpose it has to be given a reasonable opportunity. It has been judicially held that this opportunity includes an opportunity to cross-examine. It is also equally settled that the account books of a dealer should not be rejected lightly. The assessing officer gets jurisdiction to make a best ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler. Explaining the word admissible it has been provided therein that it should not be understood in the strict sense of the Evidence Act but it cannot admit of any doubt that no material can be relied with which the assessee is not confronted. The above ratio is fully applicable to the facts of the present case in as much as from the very beginning the applicant has come out with the case of categorical denial with respect of purcha, i.e., cash memo No. 7090. Inspite of demand for cross-examination put forward by the applicant, the Department failed to produce the third party from whose possession the said purcha was recovered on the pretext that the said third party is un unregistered dealer. If the Department intended to place ..... X X X X Extracts X X X X X X X X Extracts X X X X
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