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2008 (7) TMI 839 - HC - VAT and Sales TaxWhether, on the facts and in the circumstances of the case, the Tribunal is correct in sustaining the addition of 10 per cent of the purchased quantity of mohua flower disclosed by the petitioner and supported by the certificate issued by the Superintendent of Excise towards driage and wastage to determine the purchase turnover of mohua flower which is liable to tax on turnover of purchase for the purpose of levy of tax? Whether, on the facts and in the circumstances of the case, in absence of any adverse material on record the turnover of the dealer can be enhanced on mere suspicion and conjecture? Whether, on the facts and in the circumstances of the case, the Tribunal has committed error of law in deciding an issue which was neither taken in the grounds of appeal nor raised by the petitioner or the opposite party before the Tribunal at the time of hearing of the appeal? Held that:- In the present case the learned assessing officer has not conducted any enquiry as provided in sub-section (9) of section 12 of the Act before enhancing the purchase price shown by the dealer from ₹ 140 to ₹ 150 per quintal. Another important aspect is that only when the assessing officer shall be satisfied that the purchase/sale price shown by the appellant is unreasonably low compared to the prevailing market price of such goods, he is authorised to enhance the same by following the procedure laid down in sub-section (9) of section 12 of the Act. In the present case while the petitioner disclosed the purchased price at ₹ 140 according to the learned assessing officer the same should be ₹ 150 without bringing any supporting material on record. Thus, it cannot be said that the purchase shown by the petitioner is unreasonable. In that view of the matter, the Tribunal is not justified to sustain the action of the assessing officer in estimating the purchase price of mohua flower at ₹ 150 per quintal on mere suspicion and conjecture. In absence of any adverse material on record to disprove the turnover shown by the petitioner-dealer, the same cannot be enhanced on mere suspicion and conjecture. Even in a case where a best judgment assessment is called for, it is trite law that the estimate should be based on material. The ground of appeal which has been annexed to the petition as annexure 4 does not reveal that any specific ground has been taken with regard to addition of 10 per cent towards driage and wastage made by the assessing officer and deleted by the first appellate authority. By a cryptic order the Tribunal has restored the order of assessment. The order does not reveal whether any argument has been advanced by the Revenue against deletion of addition 10 per cent of purchased quantity of mohua flowers by the first appellate authority. Tribunal on its own cannot make out a new case particularly when no such point was taken in ground of appeal and argued before it. Thus answer all the questions in favour of the dealer and against the Revenue.
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