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TMI Blog2011 (8) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... rade Tax Act/the assessee had taken a categorical stand before the authorities that the goods had been purchased from registered dealer within the State, which stand he could not establish. The assessee cannot now turn around and contend before this court that the assessee be treated to have purchased the goods from an unregistered dealer within the State of Uttar Pradesh. Therefore, sales made by the assessee may not be taken to be the first sale within the State of Uttar Pradesh after "manufacture", within the definition of section 2(ee) of the U. P. Trade Tax Act. The present trade tax revision lacks merit and is accordingly dismissed. - Sales/Trade Tax Revision No. 45 of 2007 - - - Dated:- 1-8-2011 - ARUN TANDON J. Kunwar Sak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade Tax, Allahabad. The appeal was allowed under order dated February 4, 2006. Not being satisfied with the order so passed, the Department filed Second Appeal No. 250 of 2006, which was allowed by the Trade Tax Tribunal under judgment and order dated December 8, 2006. Hence the present trade tax revision. The Tribunal under the impugned order has recorded that from the records as were available, it was established beyond doubt that at the time of survey, i.e., on October 14, 2003, the assessee was found making sales through a book titled estimate and not by cash memos. Explanation furnished for the same was not accepted. It was further found that the assessee had not maintained the necessary records. The plea that the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e this court that since the purchase register was produced, the authorities were not justified in recording a finding on the presumptions that undisclosed sales of ₹ 1,20,000, had been made of goods were not purchased from unregistered dealer. Sri B. K. Pandey, learned counsel for the Department, disputes the correctness of the contention so raised on behalf of the assessee. He submits that cogent reasons have been recorded by both the assessing authority as well as by the Tribunal in not accepting the account books produced by the assessee including the purchase register. It is only after rejection of the books that the Department has proceeded to estimate the undisclosed sales at ₹ 10,00,000. It was for the assessee to esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom any other dealer not liable to tax on his sale under the Act other than sales exempted under sections 4, 4A and 4AAA]. 12A. Burden of proof:- [(1)] in any assessment proceedings, when any fact is specially within the knowledge of the assessee, the burden of proving that fact shall lie upon him and in particular, the burden of proving the existence of circumstances bringing the case within any of the exceptions, exemptions or reliefs mentioned in section 3A, section 3D, section 4, section 4A, section 4B or section 7D shall lie upon him and the assessing authority shall presume the absence of such circumstances. From a bare reading of section 2(ee) of the Act, it would be apparently clear that the dealer who sells ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision, it is apparently clear that except for alleging that all purchases have been made by the assessee from a registered dealer within the State of Uttar Pradesh, he failed to provide the said fact. The finding so recorded is based on appreciation of evidence brought on record. From the conclusions drawn by the assessee and the Tribunal on appreciation of records, it is established that the purchases could not be shown to have been made from a registered dealer within the State of Uttar Pradesh. The authorities have rightly proceeded to hold that in the facts of the present case the assessee was liable to pay tax at the rate of 12 per cent having regard to the provisions of section 2(ee) of the U. P. Trade Tax Act/the assessee had take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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