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TMI Blog2020 (4) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... ered any other reason for accepting the rejection of books of accounts which, in my opinion, is based on apprehension, rather than due consideration of the facts of the present case. It is also borne from the record that for the financial year 2008-09 tax invoice No. 467 dated 05.02.2009 relating to 63.225 metric tons of Coal was found where the coal was sold at the rate of ₹ 3750/- per MT. It has also been observed that during the same period other traders have sold coal at the rate of ₹ 6200/-per MT while the brick kiln is at the Ghaziabad and appellants have purchased coal for ₹ 5800/- to ₹ 6400/-. The Tribunal has not given any independent finding for accepting the order of the assessing officer in rejecting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the assessee was substantially allowed. 3. The counsel for the revisionist has submitted that the revisionist carries on business in Coal and is registered under section 17 of the U.P. Value Added Tax Act. He had purchased Coal from outside Uttar Pradesh only against Form 38 which was transported to the assessee s place of business on a railway racks. The freight amount was paid by the assessee to the Railways by means of bank draft, and after taking delivery of the Coal at the railway site, it was mostly sold to the brick kiln owners who carted away coal from the railway site itself on trucks wholly arranged by them. It was only in the rare case that unsold stock was transferred from the railway site to the applicant s own godown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of survey no books of accounts were produced and further that stock of Coal weighing 7-8 tonnes which was found could not be verified from the account books. With regard to the estimated turnover, the assessee had disclosed the average selling rate of Coal at ₹ 3 615.734 per MT, whereas the assessing authority estimated the same of ₹ 4100/-but the Tribunal reduced it to ₹ 3850/-per MT. The dispute with regard to the average selling rate arose due to the fact that the assessee had stated that the coal was sold at the railway site itself and was carted away by the purchaser themselves taking their own arrangements, while on the other hand the Assessing Officer and the Tribunal were of the view that the assessee had not prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought on record which could persuade them to reverse the finding in this regard in favour of the assessee. It recorded that in absence of books of accounts, bill book etc. it was open for the assessee to purchase and sell stock without making proper entries in this regard and therefore this leads to the irrefutable conclusion that the assessee is involved in trade with unregistered dealers to evade payment of tax. 10. The assessee has submitted that no books of accounts were produced before the Surveying Officer as no responsible person was present at the time of survey and no adverse inference of the same can be drawn against the assessee that he has not been maintaining books of accounts in the ordinary course of business. He has fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that when the survey was conducted, the books of accounts were with the accountant for the purposes of updating the various entries and were duly produced before the SIB. 13. The books of accounts can be rejected for various reasons; one of them can be that the stock does not tally with the books of accounts or from a perusal of the books of accounts it is not possible to determine the transactions made by the assessing authority or there may be discrepancy between the various stock registers with books of accounts and also with the physical verification of the stock which may lead to an inference that the books of accounts do not reflect the true transaction of business been carried out by the assessee. 14. In the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the grounds raised by the assessee and to have returned a finding after considering the same. Though the Tribunal has recorded that the books of accounts were duly presented when the show cause notice was given to the assessee, and no discrepancy was found in the same, but non-presentation of the books of accounts at the time of survey cannot be the sole reason for rejection of the books of accounts. The order of the Tribunal in this regard deserves to be set aside and be remanded to it for fresh adjudication. 16. In light of the above, the order of the Tribunal dated 23.11.2013 is set aside and the matter is remanded to it for fresh adjudication expeditiously, say within a period of six months from the date a certified copy of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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