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TMI Blog2009 (7) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... , the initiation of proceedings under section 21 of the U.P. Trade Tax Act, 1948 was justified? (3) Whether, on the facts and circumstances of the case, the Tribunal was justified in believing that the applicant had imported coal pursuant to the allotment order and sold the same even though there was no material on record to believe so? (4) Whether, on the facts and circumstances of the case, the estimate of the turnover in respect of sale of coal was justified? The facts of the case are that the revisionist was carrying on the business of purchase and sale of coal. In the year 1982-83, the assessee applied to the District Supply Officer, Ballia, for allotment of coal. He was allotted 3,625 M.T. of coal from outside U.P. It is stated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on merits, which was granted and, thereafter, the appeal of the assessee was heard on merits and has been decided against the assessee by an order dated January 29, 2001. The Tribunal, by the impugned order, has come to the conclusion that the proceedings under section 21 were justified and the assessee has been rightly reassessed under the said provisions. The relevant portion of section 21 is quoted hereinbelow: "21. Assessment of tax on the turnover not assessed during the year.-(1) If the assessing authority has reason to believe that the whole or any part of the turnover of a dealer, for any assessment year or part thereof, has escaped assessment to tax or has been underassessed or has been assessed to tax at a rate lower than that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gued that in fact the assessee had filed before the first appellate authority an affidavit in which he categorically stated that he had not utilized the allotment order and had not made any import of coal against the said allotment order. The learned counsel has argued that the assessee also made a categorical statement that the business of the assessee had come to a close. He further argued that this affidavit filed by the assessee was not controverted by the State and once this affidavit was accepted by the Revenue, it was not open to the Revenue to expect the assessee to discharge the negative burden of proof or to compel the assessee to file a certificate obtained from the District Supply Officer that he had not made any utilization of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieve that on the basis of the material available on the record, issuance of notice under section 21 is warranted. Mere information would not be sufficient to justify the issuance of a notice under section 21. The authority should record the finding on the basis of the material available on the record and the burden always remains on the Revenue to prove that any turnover has escaped the assessment and the burden never shifts on the assessee. It was further held that in that particular case as no from C or form XXXI were ever issued to the assessee, in the particular assessment year, then also it would be proved that no imports had been made. Ultimately, the court recorded the mere fact that some allotments of coal made by the Department wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the said import licence and had escaped assessment. The court held that "it is trite that negative fact cannot be proved and once the dealer stated on affidavit that no import was made against the aforesaid import licence, the onus was shifted to the respondent to controvert the negative contention of the dealer by cogent evidence that the import licence was utilized and in fact the import was made against that ". The court, therefore, came to the conclusion that it was not justified on the part of the Department to assume that in fact, import had been made against the said licence and, therefore, the proceedings initiated under section 21 were set at naught by this court. The learned Standing Counsel Shri K.M. Sahai has very strenuo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avit, categorically stating that he had not utilized the allotment order for import and he had closed his business. This affidavit was not controverted or doubted by the Department at any stage. Thirdly, once the assessee had discharged the burden placed on him to show that he had not utilized the import allotment or the burden shifted on the Department to produce any such evidence that it may have, after due investigation, especially in view of the fact that the Department had also within its knowledge that there was an import allotment order. The record does not reflect that the Department made any effort to investigate the said matter but simply initiated the proceedings on the basis of the information received. Thus, I am of the consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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