Prakash Krishna, J. - (1.) The applicant, a public limited company, incorporated under the Companies Act, is carrying on the business of manufacture and sale of Vanaspati, refined oil and soap etc. By means of the present revision filed under Section 11 of U.P. Sales Tax Act, (hereinafter referred to as the Act), the applicant has challenged the order dated 7thof October, 1994 passed by the Trade Tax Tribunal, Ghaziabad.
(2.) The case has a checkered history and the dispute relates to the assessment year 1971-72 (U.P.) The Sales Tax officer, Ghaziabad rejected the taxable turnover and estimated it at Rs. 12,37,00299/-. The assessment order was partly modified in appeal by the Assistant Commissioner (Judicial) by reducing the turnover and fixing it at Rs. 12,36,37,357/-. In further appeal, the Tribunal by its order dated 30.1.1985 allowed the appeal filed by the dealer applicant and remanded the matter back to the Assessing Authority with certain directions. The directions were to the effect that the dealer applicant be permitted to cross-examine the Lucknow dealer namely M/s. Ram Rikh Das Roop Chandra, The Assessing Authority was directed to produce the said dealer with record. The relevant portion of the operative order which has some relevancy, in as much as there is a dispute between the parties about its compliance of the directions, to the , ultimate decision of the present revision, is being reproduced below: "Atah yah vad kar nirdharan adhikari ko uprokta nirdeshon ke anusar punah kar nirdharan karane ke liye vapas kiya jata hai. Vyapari dwara dilai gayi freight ki dhanrashi uprokta vivechana ke anusar kar yogya dhanrashi mein sharnil nahin ki jaye gi. Kar nirdharan adhikari Lucknow ke vyapari ko appealkarta ke samaksha sambandhit ambhilekhon sahit cross examination karane ke liye prastut karein ge. Natha unake sambandh mein vyapari se spastikaran lete hue apana nirnay dein ge. Agar kar nirdharan adhikari Lucknow ke ukta vyapari ko appealkarta ke samaksha cross examination karane ke liye prastut karane mein asmarth rahate hain toa is samandha mein vyapari ke viruddha jo tathya vipareet mane gaye hain unase koi pratikool nishkarsh nikalana uchit nahin hoga".
(3.) The Assessing Authority in compliance of the aforesaid direction summoned M/s. Ram Rikh Das Roop Chandra, Lucknow, along with account books. Shri Naresh Kumar one of the partners of the firm appeared before the Assessing Authority on 16.1.1986. He was cross- examined by the dealer applicant. Thereafter the assessment order was refrained by the Assessing Authority and the taxable turnover was fixed at Rs. 12,28,44,553-60 by the order dated 29thof March, 1986. This order was confirmed in appeal by the Deputy Commissioner (Appeals) by the order dated 22nd of January, 1989. The dealer opp. party filed a second appeal before the Tribunal which came up for consideration before two Members Bench of the Tribunal. Since there was difference of opinion in between the two members of the Tribunal, the matter was referred to a third member, who agreed with one member and consequently appeal was dismissed on 7th of October, 1994, by following majority view. Aggrieved against the aforesaid order the present revision has been filed on behalf of the applicant. In the memo of revision the following questions of law have been raised: 1. Whether on the facts and in the circumstances of the case the Tribunal and the authorities below were justified in law in drawing adverse inference against the applicant on the basis of entry made in Exht-15 seized from the premises of M/s. Ram Rikhdas Roop Chandra of Lucknow even though the said Exht-15 was not confronted to the applicant for cross examination inspite of the direction given by the Tribunal earlier in its order dated 30thJanuary, 1985? 2. Whether on the facts and in the circumstances of the case and even though nothing adverse was stated against the applicant" by Ram Naresh, partner of Lucknow party, still the Tribunal was justified in law in drawing adverse inference against the applicant on the basis of entry made in the books of account of M/s. Ram Rikhdas Roop Chandra, Lucknow? 3. Whether on the facts and circumstances of the case, even though Naresh Kumar partner of Lucknow party having been appeared before the assessing authority, who was cross examined by the applicant and he having deposed the facts that the said Exht-15 has no concern with the applicant nor there is any thing written against the applicant, still the Tribunal and the authorities below were not justified in law in drawing adverse inference against the applicant on the basis of entry made in the books of account of M/s. Ram Rikhdas Roop Chandra, Lucknow? 4. Whether on the facts and in the circumstances of the case even though the assessment order was barred by limitation, still the Tribunal was justified in law in upholding the same?;