RAJES KUMAR, J. - (1.) PRESENT revision under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as 'the Act') is directed against the order of the Tribunal dated September 7, 1999 relating to the assessment year 1998 -99, by which Tribunal has deleted the penalty under Section 15A(1)(c) of the Act.
(2.) BRIEF facts of the case are that the opposite party/dealer (hereinafter referred to as 'the dealer') was carrying on the business of manufacture and sale of paints and disclosed a taxable turnover at Rs. 1,58,94,193. The assessing authority rejected the books of account and estimated the turnover at Rs. 1.62 crores by way of best -judgment assessment. The enhancement of the turnover has been made mainly on account of difference in the stock found at the time of survey dated June 6, 1993 made by the S.T.O. (S. I. B.) and on the basis of entries made in exhibit 8, which was the notebook for the period April 8, 1993 to April 6, 1993 (sic). According to the assessing authority, the entries of the notebook valued at Rs. 53,000 were not found entered in the books of account. A perusal of the assessment order filed along with supplementary affidavit reveals that the dealer explained that the alleged stocks were kept in laboratory for testing purposes and was mainly unfinished goods. The assessing authority had not accepted the explanation of the dealer on the ground that such explanation was not given before S.T.O. (S.I.B.). With regard to the entries in the exhibit 8, it was explained that such notebook was maintained by the employee and related to the loading and for the classification of various shades. It was also explained that most of the entries of the notebook were got tallied from the books of account but some of the entries could not be tallied due to the change in the loading schedule. The explanation was not accepted. Against the assessment order, the dealer could not file any appeal. The assessing authority initiated the proceeding under Section 15A(1)(c) of the Act with the view that the enhanced turnover was concealed turnover. It appears that the dealer could not submit any reply in the penalty proceeding and the assessing authority levied a sum of Rs. 91,800 towards penalty under Section 15A(1)(c) of the Act taking the enhanced turnover at Rs. 3,05,877 as suppressed sales. Being aggrieved by the order, the dealer filed an appeal before the Deputy Commissioner (Appeals), which was dismissed. The dealer filed second appeal before the Tribunal. The Tribunal, by the impugned order, allowed the appeal of the dealer and the penalty was deleted.
(3.) HEARD Sri B.K. Pandey, learned Standing Counsel and Sri K. Saxena, learned Counsel for the opposite party.;