- (1.) Present revision under section 11(1) of the U.P. Trade Tax Act, 1948 has been preferred against the judgment and order dated October 20, 2008 passed by the Trade Tax Tribunal, Lucknow, in Second Appeal No. 215 of 2001 for the assessment year 1998-99. The brief facts of the case are that during the assessment year under consideration, the assessee was engaged in the trading of foodgrains items. A survey was conducted at the business premises of the assessee on April 25, 1998 and January 14, 1999. During the survey, various discrepancies were found. So, the assessing officer has rejected the books of accounts and made the addition on estimate basis. In the first appeal, the first appellate authority, has given the partial relief to the assessee on the basis of the estimation and the Tribunal has endorsed the same. Not being satisfied, the assessee has filed the present, revision.
(2.) With this background, Sri M.M. Dewan, learned counsel for the revisionist submits that on the basis of survey, addition was wrongly made. For this purpose, he has relied on the ratio laid down in the case of Prem Narain Singh Int. Udyog v. Commissioner of Sales Tax,1993 UPTC 951, where it was observed that: ... It is on the record that none of the partners of the assessee which is a partnership firm, was available on both the surveys. It is only because of the absence of the partners that the books could not be produced. There is nothing on record to indicate that anyone had stated that no account books are maintained at the brick-kiln. In Anup Lal Sohan Lal v. Commissioner of Sales Tax, U.P. Lucknow, 1987 UPTC 1122, a learned single judge of this court has taken the view that the non-availability of the books at the time of survey is one thing and non-maintenance of the books is quite a different thing. When the books are maintained by the assessee it was the duty of the assessing officer to investigate them at the stage of assessment and find out if there was any defect and if no defect was found out in the books then they could not be rejected merely on the basis that they were not produced at the time of survey. It seems that this decision was not brought to the notice of the Sales Tax Tribunal when it proceeded to sustain the rejection of account books on the solitary ground that the books were not made available at the time of survey. That apart, as already observed, the books could not be made available because of the absence of the partners and not with any design or oblique motive.
(3.) He also relied on the ratio laid down in the case of Eastern Tube Co. Gopiganj, Varanasi v. Commissioner of Sales Tax, U.P,1980 UPTC 575, where it was observed that: As far the non-production of the account books at the time of survey that also cannot constitute a ground for rejection of the accounts. In Paramount Trading Corporation v. Commissioner of Sales Tax, 1976 38 STC 389 at the time of survey the account books were not shown by the assessee. The Assistant Sales Tax Officer accepted the book version but made an addition on the ground that the assessee had failed to show his books. On reference, the view taken by a Division Bench of this court was that the mere fact that the assessee did not co-operate with the surveying officer could not lead to the result that the account books maintained by him were not reliable. Similarly, in Bala Nath Mansoori Lal v. Commissioner of Sales Tax,1978 UPTC 747, a learned single judge of this court ruled that the mere fact that the account books were not available on two different dates when the surveying party came to survey the shop of the assessee would not constitute a valid ground for rejection of the account books. There was no clear finding that the assessee had evaded the surveying party. In the present case also no such finding has been recorded. Apart from this, the non-production of the account books for inspection or non-co-operation of an assessee with the surveying officer would render the assessee liable to penalty under the provision of the Act. By itself, it cannot constitute a ground for rejecting the books.;