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TMI Blog2006 (11) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... nd by best judgment assessment turnover was enhanced. The first appeal filed by the applicant was allowed in part. The applicant filed second appeal before the Tribunal, which was further allowed in part. I have heard Sri Piyush Agrawal, learned counsel for the appellant and Shri B.K. Pandey, learned Standing Counsel. I have perused the order of the Tribunal and the authorities below. It is not in dispute that the books of account have been produced before the assessing authority at the time of assessment proceedings and the same were examined by him, in which no defect was found. Inasmuch as the firing period disclosed by the applicant was accepted, the Tribunal was not justified in upholding the rejection of books of account merely on the ground that at the time of two surveys dated March 29, 1984 and March 30, 1985 books of account were not produced. This court in the case of Anup Lal Sohan Lal v. Commissioner of Sales Tax reported in [1988] 69 STC 254; [1987] UPTC 322, in the case of K.K. Sugar Works v. Commissioner of Sales Tax reported in [1988] UPTC 1090, in the case of Binka Bricks v. Commissioner of Sales Tax reported in [1989] UPTC 844, and in the case of Paramount Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks of account at the time of these surveys established that books of account were not maintained in the regular course of business and, therefore, were liable to be rejected. It was also noted that apart from the fact that books of account were not produced as noted above, two other factors existed to discard the books of account. Firstly, the respondent-assessee had indicated the Fukai period of seventy-two days, but had shown lesser production. The selling rate was found to be lesser than the rate prevailing during the year in question when compared to sales at kilns in the same vicinity. No explanation was offered as to how this was possible. It was noted that the assessee did not disclose the capacity of the kiln. Therefore, taking into account the productions and rates in similar cases, the assessing officer took the established norm of production to be one lakh bricks in six days and accordingly fixed the production at 12 lakhs bricks. Accordingly, assessment was completed to the best of judgment. An appeal was preferred by the assessee before the Assistant Commissioner (Judicial), Range I. The said authority with reference to the material on record found as follows: (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act reads as follows: "11. Revision by High Court in special cases.-(1) Any person aggrieved by an order made under sub-section (4) or sub-section (5) of section 10, other than an order under sub-section (2) of that section summarily disposing of the appeal, or by an order passed under section 22 by the Tribunal may, within ninety days from the date of service of such order, apply to the High Court for revision of such order on the ground that the case involves any question of law. (2) Any person aggrieved by an order made by the revising authority or an additional revising authority refusing to state the case under this section, as it stood immediately before April 27, 1978, hereinafter referred to as the said date, may, where the limitation for making an application to the High Court under sub-section (4), as it stood immediately before the said date, has not expired, likewise apply for revision to the High Court within a period of ninety days from the said date. (3) Where an application under sub-section (1) or sub-section (3), as they stood immediately before the said date, was rejected by the revising authority or an additional revising authority on the sole ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court may, on an application in that behalf, stay recovery of any disputed amount of tax, fee or penalty payable, or refund of any amount due, under the order sought to be revised: Provided that no order for the stay of recovery of such disputed amount shall remain in force for more than thirty days unless the applicant furnishes adequate security to the satisfaction of the assessing authority concerned. (8) The High Court shall, after hearing the parties to the revision, decide the questions of law involved therein, and where as a result of such decision, the amount of tax, fee or penalty is required to be determined afresh, the High Court may send a copy of the decision to the Tribunal for fresh determination of the amount, and the Tribunal shall thereupon pass such orders as are necessary to dispose of the case in conformity with the said decision. (8-A) All applications for revision of orders passed under section 10 in appeals arising out of the same cause of action in respect of the same assessment year shall be heard and decided together: Provided that where any one or more of such applications have been heard and decided earlier, if the High Court, while hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts obtained at every stage of production: Provided that in the case of any class of manufacturers, the aggregate of whose turnover, as referred to in clauses (a) to (d) of sub- section (2) of section 3, in an assessment year does not exceed five lakh rupees, the Commissioner, and in any other case, the State Government, may relax the requirements of this sub-section subject to such conditions and restrictions as he or it may deem fit to specify. (3) The accounts and the stock books required to be maintained under sub-section (1) or sub-section (2) shall be preserved by the dealer or, as the case may be, by the manufacturer for such period as may be prescribed. Section 13. Power to order production of accounts and powers of entry and inspection.-(1) Any officer empowered by the State Government in this behalf, may, for the purposes of this Act, require any dealer to produce before him any book, document or account relating to his business and may inspect, examine and copy the same and make such enquiries from the dealer relating to his business, as may be necessary: Provided that books, documents and accounts of a period more than four years prior to the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , documents, accounts or goods relating to his business: Provided that no residential accommodation (not being a place of business-cum-residence) shall be entered into, inspected or searched by such officer unless specially authorised in this behalf by the Commissioner in writing. (4-A) An officer authorised to act under sub-section (2)- (i) shall have the power to seal the place of business or vehicle, or any box, almirah or other receptacle found on such place of business or vehicle in which he has reason to believe that any account, register or other documents or goods are kept or contained, if the owner or the person in occupation or incharge of such place of business or vehicle or box, almirah or other receptacle leaves the place or is not available or fails or refuses to open it when called upon to do so; (ii) where the owner or other person in occupation or incharge of the place of business or vehicle or of the box, almirah or other receptacle found in the place of business or vehicle, is present but leaves the place or after an opportunity having been given to him to do so, fails to open, as the case may be, such place of business or vehicle or box, almirah or other rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the books of account are to be kept at the place of business. If they are not kept at the place of the business, the power of inspection in terms of section 13 becomes redundant. Sub-section (4) of section 13 empowers the officer of the authority to enter and search any place or any other building or place where he has reason to believe that the dealer keeps or for the time being keeps any documents and accounts relating to his business. The expression "place of business" is defined in section 2(c)(1). The definition is an inclusive one and includes any place where a dealer keeps his books of account. That being so, non-production of the books of account at the time of survey is a factor which can be taken into consideration by the assessing officer while examining the return to find out whether the same is incorrect or incomplete. Production of books of account at the time of assessment does not take away the effect of non- production at the time of survey. Such non-production is a relevant factor which can be considered by the assessing officer while considering whether the books of account are to be accepted as to have been maintained in the regular course of business. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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