2023 (9) TMI 800 - ALLAHABAD HIGH COURT

Validity of remanding the case on the issue which had already attains finality after the order of the first appellate authority passed in appeal filed against the provisional assessment order - HELD THAT:- On perusal of the aforesaid observation made in provisional assessment order, it transpires that query was put to the revisionist that at the time of survey dated 13.5.2015, calcium octet was not found at his business premises but on production of stock register, entries of 1710 kgs of calcium octet were mentioned however while issuing show cause notice for provisional assessment the commodities has wrongly been mentioned but the assessing authority has not discussed anything about the fact that at the time of survey stock of some specific chemical was not found though the same has been mentioned in the stock register. Further the assessing authority observed that no adverse inference should be drawn against the revisionist. The assessing authority has neither assigned any reason nor any finding has been recorded for not drawing any adverse inference against the revisionist.

The first appellate authority has observed that at the time of survey dated 3.5.2015 stock of calcium octet was not found but same was available in the factory. The said fact is accepted by the Assessing Authority. However, neither anything was brought on record to support the said finding nor any discussion had been made in the provisional assessment order to clarify the justification given by the assessee, as such, the findings recorded by the first appellate authority in this respect is perverse - Further the observation of the 1st appellate authority that the chemical was available in the factory is without any material on record or discussion, therefore has no leg to stand. Once neither any discussion nor any finding has been recorded by any of the authority about shortcomings of chemical found at the time of survey dated 13.5.2015, it will be incorrect on the part of the revisionist to argue and suggest that once on the provisional assessment order the finding has been recorded in favour of the revisionist, which was confirmed by the first appellate authority, the matter ought not to have remanded the matter for redetermination of the said fact.

Thus, no interference is called for by this Court in the impugned order. The revision is dismissed.