TMI Blog2008 (7) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... have been reduced to ashes in fire on July 31, 1985 was not disclosed to the Surveying Officer, who visited the place immediately after two days, i.e., on August 2, 1985. The assessing officer opined that theory of fire is nothing but a cock and bull story and has been set up purposely. The said finding has not been reversed or ever touched by the Tribunal. The Tribunal was under legal obligation to have taken into consideration those aspects of the case also which were considered by the authorities below in negating the case of the dealeropposite party, more so while reversing the order of the authority below to it. Viewed as above, the order of the Tribunal is unsustainable and indefensible. The said order is hereby set aside and it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ened on it. The assessment order was challenged before the Assistant Commissioner (Appeals) in Appeal No. 535 of 1995. The appellate authority reduced the turnover, but upheld the rejection of the account books. The matter was carried to the Tribunal by the applicant as well as by the Department. The appeal filed by the Department was rejected while that of the dealer-opposite party was accepted by the Tribunal by the order under revision. In the memo of revision, the following questions of law have been sought to be raised: (1) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified in knocking off the State revision and allowing fully dealer's revision without considering the ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as set aside by the first appellate authority with the direction to give opportunity to the dealer. Again when the matter was taken up after remand, the dealer-opposite party failed to participate in the assessment proceedings. The assessing officer found that on the earlier occasion, a list of purchases was filed by the dealer wherein names and addresses of the selling dealers were disclosed. On verification, it was found that such selling dealers do not exist. It has been found that M/s. Amar Oil Mill, Bulandshar, Nand Kishore Pradeep Kumar, Jahangirabad; Jaibhagwan Narendra Kumar, Jahangirabad; Gauri Oil Mill, Hardoi and Baijnath Munnalal, Chandausi from whom the dealer allegedly purchased oil do not exist, necessary information was coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not exist and as such, the purchases could not be verified. However, it granted some relief with respect to the purchases which were verified and allowed the appeal in part. Strangely enough, the Tribunal has confirmed the findings recorded by the authorities below to the effect that the allegations of the dealer-opposite party that it made the purchases from the aforestated firms, are incorrect and untrue, but granted the relief on the ground that the dealer-opposite party is not manufacturer of oil. In this connection, it may be noted that the Tribunal confirmed the findings of the first appellate authority and accepted the case of the Department that one of the selling dealers, M/s. Awgharnath Oil Mill, Meerut has stated in categor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided for by section 12A of U.P. Trade Tax Act, 1948. Section 12A is in two parts. In the first part it provides that in any assessment proceedings, when any fact is in special knowledge of the assessee, he should prove it. Burden of proving the existence of circumstances bringing the case within any of the exceptions, exemptions or relief shall lie upon the assessee. Drawing of presumption is confined to the absence of such circumstance which the assessee was required to prove. In the given case, the assessee was required to prove that it made the purchases of oil locally, which it failed to prove. In the absence of any material to show that the dealer-opposite party has made local purchases of oil, it is not entitled for exemption on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the same reason the decision given in the case of Commissioner of Sales Tax v. Mala Ram [1987] UPTC 471 is also not applicable to the facts of the present case. The Tribunal was not justified in setting aside the order passed by the first appellate authority. The Tribunal has committed another error as it has presumed that the purchases were made by the dealers-opposite party from unregistered dealer. Such was never the case before the authorities below including the first appellate authority. On the contrary, the case of the dealer-opposite party was otherwise that it has made the purchases from the registered dealers whose addresses were supplied by it during the course of assessment proceedings. Another factor which has been l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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