2005 (5) TMI 634

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..... tration from the Trade Tax Department. No business was carried on by it either in partnership or proprietorship prior to 15th July, 1988. The case of the dealer/applicant was not accepted in view of the facts found in the survey dated 21st July, 1988. The Assessing Officer framed best judgment assessment order on the basis of the aforesaid survey treating Sri Vinod Kumar as partner along with two other persons, namely, Ghanshyam Das Kesharwani alias Bhaiyaji and Mukesh Chand Kesharwani. The assessment order has been confirmed up to the Tribunal stage. 3. Heard Sri Kunwar Saxens, learned Counsel for the applicant and Sri Vipin Pandey, learned Standing Counsel for the department. 4. The sole basis of the assessment order is the survey dated .....

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..... on the basis of some complaint as mentioned in the order of the Tribunal. Learned Counsel for the applicant strenuously contended that the said survey is totally bogus and inspite of repeated request the original survey report was never shown to the applicant either by the Assessing Officer or by any other officer. Looking to the facts and circumstances of the case, the survey report itself is of doubtful nature. The report given by the Surveying Officer is based on hearsay evidence, except that certain goods which were locally purchased were found at the time of the survey. It could not be disputed that the goods locally purchased were exempted from payment of sales tax in the relevant assessment year. Learned Counsel for the department s .....

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..... elevant for the assessment of the turnover of the firm, but is wholly irrelevant to another business which is being carried on by a partner in his individual capacity independently. A plea of alibi was also pressed and it was submitted that in the assessment year the applicant was doing business in Maharashtra. Doing of business, if any, at Maharashtra has hardly any significance in the matter. 6. In view of above discussion, I find that exclding the survey report, dated 21st July, 1988, there is no material on record to show that the applicant has carried on any business in the relevant assessment year, in view of the above discussion the order of the Tribunal confirming the assessment order cannot be sustained and the order of the Tribun .....

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