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TMI Blog2019 (11) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... inessman would, in order to avoid tax liability, give such intimation to the Assessing Officer. Whether in the absence of any such provision making it mandatory for Brick Kiln owner to inform the Department about the stopping of firing (Phukai) the findings recorded by the Department and the Tribunal regarding the period for which the Brick Kiln was run, is sustainable in law or perverse? - HELD THAT:- It is not out of place to mention that even if there is no requirement in the Act, 1948 for the assessee to intimate the Assessing Officer about the closure of Brick Kiln as already stated in the context of Question No. 1 any prudent person would inform the Assessing Officer in this regard to avoid tax liability. Furthermore, if, he does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iln was run, is sustainable in law or perverse ? The contention of Shri Mudit Agarwal, learned counsel for the revisionist with regard to the aforesaid questions of law is that there is no such requirement in the U.P. Trade Tax Act, 1948 requiring the brick kiln owner to furnish intimation to the Sales Tax Authority/Assessing Authority about the closure of the Brick Kiln or the period it has been functioning. In this regard he relied upon Para 7 of the Single Judge Bench decision of this Court reported in 1984 U.P.T.C. 686; Commissioner of Sales Tax, U.P. Lucknow Vs. S/S. Malik Raj Arora wherein it has been observed that there is no such mandatory requirement in the Act, 1948 requiring an assesee dealing in manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me business as has been noted by this Court in the judgment rendered in S/S. Malik Raj Arora (supra). Having heard the learned counsel for the parties and perused the records as far as the question no. 1 is concerned, no doubt none of the counsel for the contesting parties could point out any such provision in the Act, 1948 mandatorily requiring the assessee to inform the Assessing Officer about the closure of Brick Kiln, however, the Court finds merit in the submission of Mr. Shukla that any prudent businessman would, in order to avoid tax liability, give such intimation to the Assessing Officer. Whether in the absence of such intimation this by itself would be a ground for imposing tax liability upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been put to challenge. The Assessing Officer has assessed the period during which the Brick Kiln remained operative as 38 days based on his best judgment assessment. As has been observed in the decision of S/S. Malik Raj Arora (supra) once the books of account are rejected it lies in the discretion of the Assessing Authority to make a best judgment assessment. While making a best judgment assessment there is always some room for guess work. To what extent an increase in the amount of turnover is justified so as to save it from the vice of being arbitrary or capricious depends on the facts of each case and it is not possible to lay down any inflexible rule in this behalf. In the facts of the present case this Court does ..... X X X X Extracts X X X X X X X X Extracts X X X X
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