TMI Blog1992 (11) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... f account and estimated the suppressed sales of goods on the basis of seized documents namely, exhibit 13, from the business premises of M/s. Khusi Ram Ramesh Chand, at the time of survey on April 12, 1979. The applicant during the course of assessment proceedings sought confrontation of the original exhibits and asked for an opportunity of cross-examination of the partners of M/s. Khusi Ram Ramesh Chand. The Sales Tax Officer summoned Ramesh Chand, the partner of M/s. Khusi Ram Ramesh Chand but he did not appear. The Sales Tax Officer, thereafter, without taking any coercive measure to secure his presence, proceeded to decide the case and assessed the applicant relying on the document exhibit 13. The applicant filed an appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments and the assessing officer failed to perform his duty, it cannot be given a fresh opportunity prejudicial to the rights of the applicant. There is no dispute that under section 9 of the U.P. Sales Tax Act the appellate authority has power to remand case. Section 9(3)(a)(iii) provides as follows: "Set aside the order and direct the assessing authority to pass a fresh order after such inquiry as may be specified;" Section 9 does contemplate power of the remand by the appellate authority and it further empowers the appellate authority to direct the assessing authority to pass a fresh order of assessment after such inquiry as may be specified in the order. The grounds on which such an order shall be passed has not been enumerated. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for permitting the parties to adduce fresh evidence to fill up the lacuna or to decide a point When the material is already on record. On the other hand, remand is permissible when the affected party has not been given an opportunity of hearing or necessary questions of fact and law required to be determined have not been determined by the authority concerned or the authority committed some procedural irregularity and illegality. In the present case, it has been found that certain transactions mentioned in exhibit 13 related to the applicant. These entries were made in the account books of M/s. Khusi Ram Ramesh Chand. A photostat copy of the entries of the said account book was furnished by the Sales Tax Officer to the applicant. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o further steps were taken by the Sales Tax Officer. In this case the court itself distinguished the case of Commissioner of Sales Tax v. Oswal Vanaspati and Allied Industries 1981 UPTC 240. In Commissioner of Sales Tax v. Oswal Vanaspati and Allied Industries 1981 UPTC 240 the Sales Tax Officer had rejected the account books of the assessee on the basis of the entries found in the books of account of a third party. The Sales Tax Officer had summoned such party but as he was not available, he proceeded to pass an order. The order was affirmed in appeal. The assessee filed revision and it was held that the books of account of the assessee could not be rejected on the basis of books of account of a third party when the assessee was not give ..... X X X X Extracts X X X X X X X X Extracts X X X X
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