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TMI Blog2024 (5) TMIX X X X Extracts X X X X X X X X Extracts X X X X ..... n the cash box of the petitioner, ignoring the documentary evidence found at the time of survey which clearly establish sale of huge amount of goods on credit. Therefore, it cannot be said that the Tribunal has set aside the order of the First Appellate Authority and restored the order passed by the Assessing Authority without giving any reasons. Non--consideration of material evidence on record - onus of proof - HELD THAT:- The Tribunal has taken into consideration the entire material available on record, including the slips found at the time of survey which established large scale sale made on credit by evading payment of tax, and it cannot be said that the Tribunal had passed the order without considering the material evidence available on record. It is also relevant to note in this regard that no documentary evidence in this regard had been adduced by the revisionist. Failure to obtain any form 31 from the Trade Tax Department and is dealing in tax paid goods and the entire purchases were made within the State of U.P. which are verifiable from the purchase vouchers - HELD THAT:- The findings of the survey and the material placed by the petitioner could not establish that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself. The learned counsel for the appellant had attended the proceedings of appeal on some earlier dates but on the date of its decision, his counsel neither appeared before the Tribunal, nor did he seek an adjournment. In these circumstances, the provisions contained in the proviso appended to Rule 68(4) are attracted and the Tribunal was justified in proceedings to decide the second appeal ex-parte. Proceedings on extraneous consideration - HELD THAT:- The Tribunal has proceeded on extraneous considerations and has committed factual and legal errors, the learned counsel for the revisionist could not point out any material to establish the allegation that the Tribunal has proceeded on any extraneous consideration -In COMMISSINER OF SALES TAX, U.P. VERSUS M/S. KUMAON TRACTORS MOTORS [ 2001 (7) TMI 1283 - SUPREME COURT] , the Hon ble Supreme Court has held that Section 11 of the Trade Tax Act confers a limited jurisdiction on the High Court to interfere in the order of the Tribunal only on the question of law and while doing so, this Court cannot re-appreciate the evidence. There appears to be no illegality in the impugned order - Revision lacks merit and the same is hereby dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner s tax liability solely on the ground that at the time of survey made at about 4:30 PM on 25.01.2003, merely a sum of Rs. 1,510/- was found in the cash box of the petitioner. 8. In second appeal, the department contended that the First Appellate Authority erred in assessing the petitioner s tax liability only on the basis of cash amount found in the cash box of the petitioner s premises whereas several documents have been recovered showing sales of goods worth huge amount, on credit. In such circumstances, tax liability assessed by the Assessing Authority could not be reduced merely on the basis of quantum of cash received in the petitioner s premises. 9. Slips bearing Nos.36 to 50 found in the petitioner s premises indicated sale of goods worth Rs. 1,08,625/- by evasion of tax. Slips bearing Nos.15 to 34 indicated sale of goods worth Rs. 35,708/-, including Cement worth Rs. 15,442/-. Slips bearing Nos.36 to 50/- established sale of Cement and some other goods by evading tax. The source of purchase of Cement and Iron bars could not be established due to lack of documentary evidence and, therefore, the Assessing Authority assessed liability of tax treating the petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Tribunal that in spite of sufficient information of the second appeal, nobody had appeared on behalf of the petitioner in the second appeal. 13. The petitioner claims that it had given an application dated 22.11.2008 under Section 22 of the Trade Tax Act for recall of the ex-parte order dated 16.10.2008, a copy whereof was served upon the petitioner on 09.11.2008. The petitioner claimed that the proprietor and Pairokar of the Firm Anis Ahmed remain confined to bed from 04.10.2008 to 24.10.2008, but no orders were passed on that application. 14. However, as the petitioner has challenged validity of the judgment and order dated 16.10.2008 by filing a revision, the application for setting aside the aforesaid order on the ground that it was passed ex-parte, loses its significance, as this Court has admitted the revision for final hearing and the validity of the order dated 16.10.2008 is being examined on its merits. 15. The revision was admitted on 22.01.2009 on all the questions of law formulated in the memorandum of revision, which are as follows: - 1. Whether the learned Tribunal was justified in rejecting the appeal filed by the applicant and to allow the cross appeal f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f huge amount of goods on credit. Therefore, it cannot be said that the Tribunal has set aside the order of the First Appellate Authority and restored the order passed by the Assessing Authority without giving any reasons. 17. Regarding the 2nd question formulated in the memo of revision, suffice it to say that the Tribunal has taken into consideration the entire material available on record, including the slips found at the time of survey which established large scale sale made on credit by evading payment of tax, and it cannot be said that the Tribunal had passed the order without considering the material evidence available on record. It is also relevant to note in this regard that no documentary evidence in this regard had been adduced by the revisionist. 18. Regarding the 3rd question relating to Form 31, the findings of the survey and the material placed by the petitioner could not establish that the revisionist is dealing in tax paid goods only. The revisionist could not produce any documentary evidence regarding purchase of huge quantity of goods and Iron bars. In these circumstances, the claim of the revisionist that it had not obtained any Form 31, is without any basis. 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t itself had filed Second Appeal No.322 of 2004 and, therefore, the appellant had sufficient knowledge of filing of the appeal as the same was filed by itself. The learned counsel for the appellant had attended the proceedings of appeal on some earlier dates but on the date of its decision, his counsel neither appeared before the Tribunal, nor did he seek an adjournment. In these circumstances, the provisions contained in the proviso appended to Rule 68(4) are attracted and the Tribunal was justified in proceedings to decide the second appeal ex-parte. 25. Regarding the last question that the Tribunal has proceeded on extraneous considerations and has committed factual and legal errors, the learned counsel for the revisionist could not point out any material to establish the allegation that the Tribunal has proceeded on any extraneous consideration. 26. In Commissioner of Sales Tax U.P. Versus Kumaon Tractors Motors : (2009) 9 SCC 379, the Hon ble Supreme Court has held that Section 11 of the Trade Tax Act confers a limited jurisdiction on the High Court to interfere in the order of the Tribunal only on the question of law and while doing so, this Court cannot re-appreciate the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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