- (1.)Leave granted.
(2.)Being aggrieved by the judgment delivered by the High Court of Delhi in STC Nos.1 and 2 of 2008 and CM Nos.2161 and 2162 of 2008, these appeals have been filed by the appellant assessee. The assessee has been aggrieved by the assessment orders as well as the orders of penalty. As both the appeals pertain to the assessee-appellant, at the request of the learned counsel, they were heard together.
(3.)The facts giving rise to the present litigation, in a nutshell, are as under :
The appellant - assessee has been registered under the Delhi Sales Tax Act, 1975 (hereinafter referred to as the 'Act') as well as under the Delhi Value Added Tax, 2004 and is carrying on the business of manufacture and sale of sweets, namkeens and other eatables. On 9th March, 2000 and 10th March, 2000, officers from the office of the Commissioner of Sales Tax had visited business premises of the appellant-firm and had recorded statements of partners of the appellant-firm and had also checked total cash inflow on those days. On those two days, sale proceeds were Rs.2,13,974/- (Rupees two lac thirteen thousand nine hundred and seventy four only) and Rs.1,98,009/- (Rupees one lac ninety eight thousand and nine only) respectively.

At the time of assessment for the Assessment Year 1999-2000, it was found by the Assessing Officer that the assessee had not shown its income correctly and therefore, the Assessing Officer had taken into account the facts gathered on the aforesaid two days for the purpose of assessing total sales. On the basis of the gross receipts of sale effected on the aforestated two days, average receipts per day had been calculated and the Assessing Officer had come to a conclusion that the sale proceeds of the assessee for the relevant year was Rs.7,51,86,350/- (Rupees seven crore fifty one lacs eighty six thousand three hundred and fifty only). Before coming to the said conclusion, the assessee was given an opportunity to explain its books of accounts, as there was substantial discrepancy between the receipts shown in the books of accounts and the gross receipts which were actually found on the aforestated two days. It was, prima facie, believed by the Assessing Officer that the assessee had not given accurate details about the gross receipts.

Similarly for the Assessment Year 2000-2001, on 24.10.2000 also there was a surprise visit to the place of business of the appellant-assessee and even on that day it was found by the officers that there was discrepancy in cash on hand and cash as per books of accounts. Moreover, they also found that there was discrepancy in stock as the actual stock and stock as per books of accounts were not same. Thus, once again it was found that the books of accounts maintained by the appellant-assessee were not in order.

In spite of issuance of notice and giving hearing to the appellant- assessee firm, sufficient explanation was not provided to the Assessing Officer and therefore, assessment for Assessment Year 1999-2000 was made under Section 23(3) of the Act. As the Assessing Officer had come to a conclusion that correct books of accounts had not been maintained, penalty was also imposed upon the assessee by assessment order dated 31.12.2001 for the said assessment year. Similarly, for the Assessment-Year 2000-2001 also, the books of accounts had not been maintained properly. In view of the said fact the Assessing Officer had taken into account figures of sales arrived at by him for the Assessment Year 1999-2000 and had added 10% thereon as that was considered to be a normal growth of the business in normal circumstances, thereby arriving at gross sales for the Assessment Year 2000-2001.

Being aggrieved by the above mentioned assessment orders, the assessee had preferred appeals before the Commissioner of Sales Tax, which had been dismissed by an order dated 13.11.2003 and therefore, the assessee had preferred appeals before the Appellate Tribunal of Sales Tax, which had also been dismissed by a common order dated 03.11.2004.

Thereafter, the appellant-assessee had approached the High Court by filing STC Nos.1 and 2 of 2008. The High Court was also pleased to dismiss the said Reference Cases after giving hearing to the concerned parties by a common judgment dated 19th May, 2009 as no question of law was involved in the said cases. The said judgment has been challenged in the present appeals.