Rajes Kumar, J. - (1.) Present two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 23rd October, 2000 relating to the assessment years, 1997-98 and 1998-99. Dealer/opposite party (hereinafter referred to as "the dealer") was carrying on the business of iron scrap. In both the years, the dealer claimed to have maintained books of account in the regular course of business. Dealer claimed to have purchased iron scrap from outside the State of U.P. as well as within the State of U.P. from un-registered dealer as well as from the registered dealer. Dealer had admitted the liability of tax on the sale of iron scrap purchased from outside the State of U.P. claiming exemption on the turnover of iron scrap purchased from unregistered dealer and from registered dealer. Assessing authority made the enquiry about the dealers claimed to be registered dealer within the State of U.P. from whom iron scrap were purchased and found that those dealers were not traceable thus, treated those purchases as forged purchases and accordingly, the tax has been levied. Books of account have also been rejected by the assessing authority for the years under consideration on the basis of the discrepancies found at the time of survey dated 22.6.1998 and from various documents seized at the time of survey. After rejecting the books of account, by way of best judgment assessment suppressed turnover have also been estimated. Being aggrieved by the assessment order, dealer filed appeals before the Deputy Commissioner (Appeals). Deputy Commissioner (Appeals) allowed the appeals and remanded back the case to the assessing officer, who in its order observed that it appears that the purchases were mainly made from the U.P. dealer who have imported the goods against Form 31 and also appears to have been assessed to tax thus, this aspect of the matter requires further investigation. Being aggrieved by the order of the Deputy Commissioner (Appeals), dealer filed appeals before the Tribunal. Tribunal by the impugned order, allowed both the appeals in part. Tribunal held that merely because the Kanpur parties who have imported the goods against Form 31 have not furnished their returns properly and not disclosed their sales, the adverse inference against Ghaziabad parties cannot be drawn and, thus, the order of the first appellate authority directing the assessing officer to make further enquiry is not justified. Tribunal further observed that if the intent of the dealer would be to evade the tax, the dealer would not have disclosed the progressive turnover in the years under consideration in comparison to the earlier years. Tribunal also observed that the first appellate authority has also found that the reasoning given by the assessing authority for the rejection of disclosed turnover are insufficient and improper and accordingly accepted the books of account. Thereafter, Tribunal dealt about the taxability of the purchases made from unregistered dealer and held that the sales of iron scrap purchased from unregistered dealer is liable to tax. Heard learned counsel for the parties.
(2.) Learned Standing Counsel submitted that the Tribunal has illegally interfered with the order passed by the first appellate authority remanding back the case to the assessing officer. He submitted that the matter has been remanded back to the assessing officer to make further enquiry about the alleged purchases made from Kanpur parties because it was the case of the dealer that the Kanpur parties have imported the goods against declaration Form and they have been assessed to tax. He further submitted that the first appellate authority has not accepted the books of account and disclosed turnover and the Tribunal has erred in observing that the first appellate authority has also found the reasoning given by the assessing authority for the rejection of disclosed turnover insufficient and improper.. He further submitted that the real issue was the purchases claimed to have been made from registered dealer which were found to be not traceable and non verifiable in respect of which matter has been remanded back by the first appellate authority to the assessing officer. He submitted that such issue has not been adjudicated by the Tribunal. He submitted that in any view of the matter, if Tribunal was of the view that remand of the case was not justified, the matter should have been remanded back to the first appellate authority for deciding the appeal on merit instead of deciding the appeal on merit substituting the assessment order by making its own assessment. In support of his contention, he relied upon the decision of this Court in the case of Commissioner of Trade Tax Versus S/S Shadi Ram Ganga Prasad (P) Ltd., reported in 2006 NTN (Vol.29) 231.
(3.) Learned counsel for the dealer relied upon the order of the Tribunal and further submitted that the Tribunal on the basis of the material on record has held that the remand of the case to the assessing officer is not justified and the rejection of the books of account is also not justified.;