TMI Blog2017 (12) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, where the order is based on no evidence on record, it is liable to be interfered. The matter is remanded back to the learned Tribunal with the direction to consider and decide the matter afresh in accordance with law after taking into consideration the points raised by the revisionist - revision allowed by way of remand. - Trade Tax Revision No. 8 of 2009 - - - Dated:- 21-12-2017 - Hon'ble Rajesh Singh Chauhan, J. For the Applicant : Naresh Chandra Mishra For the Opposite Party : C.S.C. ORDER 1. Heard Sri Naresh Chandra Mishra, learned counsel for the revisionist and Sri Sanjay Sarin, learned counsel for the respondent. 2. By means of the instant revision filed under Section 11 of U.P. Trade Tax Act, the revisionist has assailed the judgment and order dated 01.11.2008, passed by the Division Bench of the Trade Tax Tribunal, Lucknow in cross Second Appeals No.310 of 2003 and 439 of 2003 (Assessment Year 2001-02), whereby the order of the First Appellate Authority in Appeal No.880 of 2002 decided on 07.03.2003, was set aside and the order passed by the Trade Tax Officer, Sector-2, Lakhimpur dated 30.09.2002 was restored. 3. In order to appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manufacturer under Section 2 (ee) of the Act, 1948 without any evidence on record or any purchase from the unregistered dealer. The learned Tribunal by means of impugned order dated 01.11.2008 set aside the order of the First Appellate Tribunal and confirmed the assessment order of the Assessing Authority dated 30.09.2002 by dismissing the appeal of the revisionist and allowed the appeal of the Revenue. 10. Learned counsel for the revisionist, Sri Naresh Chandra Mishra, has vehemently argued that in the show cause notice in question, no allegation was made against the revisionist regarding import of any Cement or Iron Steel from outside the State or that it Manufactures any commodity within the State. 11. The next submission of learned counsel for the revisionist is that the revisionist does not manufacture any shutter/ channel etc. nor any such evidence was found at the time of survey dated 07.11.2001 made by the S.I.B. Sitapur. It has also been submitted that no import of any Cement or Iron Steel has been done by the revisionist and no purchase from the unregistered dealer was made. 12. The learned counsel for the revisionist has further submitted that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t judgment assessment that was held to be valid. But, in the present case, no excess stock in any commodity was found and in fact the stock in books was more than estimated by the Survey Authority. Therefore, Sri Mishra on the strength of some judgments of this Court submitted that in case of shortage of stock at the time of survey than the stock shown in the books of accounts, no adverse view can be taken. Therefore, Sri Mishra has submitted that where the order of the Tribunal is based on evidence on record, it is question of law and the order of the Tribunal can be set aside under Section 11 of the Act, 1948. He further submitted that if the decision of Tribunal is passed without adverting to points raised by the revisionist, the said judgment/ order is vitiated and is liable to be set aside. 16. Per contra, Sri Sanjay Sarin, learned counsel for the Revenue has submitted that order of the Tribunal dated 01.11.2008 is perfectly valid and justifiable and the Tribunal has passed the aforesaid order after considering each and every facts and circumstances of the case. Sri Sarin also submitted that Manufacturer , as per Section 2(ee) of the Act, 1948 is a dealer who imports the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst Appellate Authority and the Second Appellate Authority, it appears that the submission of learned counsel for the revisionist has substance. The, learned Standing Counsel could not dispute the aforesaid submission of learned counsel for the revisionist. 21. In support of his submissions/ contentions, learned counsel for the revisionist has drawn attention of this Court towards the case law of Hon'ble the Supreme Court in re: M/s Jhunjhunwala and others vs. State of U.P. and others reported in S.T.I. 2006 SC 257. In the case of M/s Jhunjhunwala (supra) the Hon'ble Apex Court has interpreted the word Manufacturer as defined in Section 2 (ee) of the Act 1948 and also of ''liability to tax of purchase of goods in certain circumstances' as defined under Section 3-AAAA of the Act, 1948, besides other terms of the Act, 1948. The relevant paras of the case of M/s Jhunjhunwala are in paras- 4, 6, 8, 9, 10 and 11, which are being reproduced here-in-below:- 4. In support of the appeals, learned counsel for the appellants submitted that the High Court proceeded on entirely erroneous premises. There could be no question of any levy of tax unless the seller is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of such goods purchased from any person other than a registered dealer; (iii) the purchasing dealer resells such goods within the State or in the course of inter- State trade or commerce or exports out of the territory of India in the same form and condition in which he had purchased them; (iv) such goods are liable to be exempted under Section 4-A of this Act. Explanation: For the purpose of this section and of Section 3-AAA, the sale of- (i) ginned cotton after ginning raw cotton purchased as aforesaid; or (ii) dressed hides and skins or tanned leather, after dressing or tanning raw hides and skins purchased as aforesaid; or (iii) rice during the period commencing on September 2, 1976 and ending with April 30, 1977 after hulling paddy purchased as aforesaid; shall be deemed to be in same form and condition. 8. The High Court appears to have completely lost sight of challenge before it and went on to decide issues which are really not relevant. It took note of paragraph 3(c )(iii) of the Counter Affidavit filed by the respondent before the High Court which reads as follows: Many of the big dealers, sells after showing the purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, therefore, in order. The argument is not acceptable for the simple reason that in Section 3-AAAA the sine qua non for liability is that the goods must be liable to tax under the Act. That aspect has to be factually determined. The Commissioner's circular is not and cannot be a substitute for such determination. The assessments in these cases appear to have been done solely on the basis of the view expressed in the circular. 22. The Hon'ble Supreme Court in the case of Commissioner of Customs (Preventive) vs. Vijay Dasarath Patel reported in (2007) 8 RC 407 has held that where the order has been passed without adverting to the facts raised, then it is a question of law. Further, where the order is based on no evidence on record, it is liable to be interfered. The relevant paras-24, 25 26 of the aforesaid judgment are as under:- 24. The High Court shall also be entitled to opine that a substantial question of law arises for its consideration when material and relevant facts have been ignored and legal principles have not been applied in appreciating the evidence. Arriving at a decision, upon taking into consideration irrelevant factors, would also give rise to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of import of cement. 7. In view of the above, estimate of turnover of imported cement does not appear to be justified. So far as the estimate of turnover of general merchandise goods and the aisi is concerned, I do not find any error. Admittedly, the books of account and purchase vouchers have not been produced before the Assessing Authority in respect of the aforesaid items. Thus, the estimate of the turnover by way of best judgment, assessment cannot be said to be unjustifed. 24. This Court in the case of Sri Krishna Steel Works through Projector Devendra Yadav vs. Commissioner Trade Tax reported in 2013 NTN (Vol.52) -166 has held that the best judgment assessment cannot be made in an arbitrary manner on the basis of conjunctures and surmises. There has to be some material to support such an assessment. 25. This Court in the case of M/s Laxmi Narain Ashok Kumar Vs. Commissioner Trade Tax reported in 1993 UPTC 497 has held that the stock found less but recorded entry was on higher side at the time of survey, in normal course of conduct, it will not show that the assessee had an intention to evade the tax. 26. In the light of the foregoing discussions and the sett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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