- (1.) Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 7th March, 2007 relating to the assessment year, 2001-2002.
(2.) The applicant is a registered dealer under the U.P. Trade Tax Act and was carrying on the business of Milk Powder, Sanitary goods and Hardware. Applicant has not disclosed any inter-State sales. It is claimed that it has never made any inter-State sales in the past and in future. For the assessment year in dispute, applicant has been assessed to tax under the Central Sales Tax Act on the basis of one booking register seized at the time of survey made by the STO (SIB) at the premises of transporter M/s. Kanpur Delhi Goods Carrier Limited, Varanasi. In the booking register there were 55 transactions in the name of M/s. Kumar Trading Company. When the applicant was confronted with the aforesaid information and with the booking register, it was submitted that the said entries did not relate to it. It was contended that there were three registered Firms in the name of Kumar Trading Company in Varanasi itself and in the register, the name, address etc. were not mentioned to connect the entries with the applicant. Assessing authority had not accepted the plea and assessed to tax the 55 transactions under the Central Sales Tax Act. Being aggrieved by the order, applicant filed appeal under section 9 of the Act before the Joint Commissioner (Appeals), Trade Tax, Varanasi. Joint Commissioner (Appeals), Trade Tax, Varanasi allowed the appeal and remanded back the matter to the assessing authority with the direction to give opportunity of cross- examination of the Transport Company from whose possession booking register was found. In pursuance of the aforesaid direction given by the Joint Commissioner (Appeals), Trade Tax, Varanasi, opportunity of cross- examination to the Transport Company was given. In the cross-examination, the representative of Transport Company had not admitted that the said transaction related to the applicant. Bill and builties etc. on the basis of which entries were made in the booking register have also not been produced and claimed to have been destroyed. The contents of cross-examination are mentioned in the assessment order passed under Section 9(2) of the Act. Despite the fact that the representative of the Transport Company had not said anything by which the entries of booking registere could be connected with the applicant, still the assessing authority passed the assessment order and levied the tax on the turnover of brassware on the basis of such entries. The order of the assessing authority has been upheld in first appeal and by the Tribunal.
(3.) Heard Shri Kunwar Saksena, learned counsel for the applicant and Shri B.K. Pandey, learned Standing Counsel. Learned counsel for the applicant submitted that the assessment against the applicant has been made merely on presumption, surmises and conjuncture. He submitted that the entries in the booking register do not reveal that they are connected with the applicant. The name and address are not mentioned. Transport Company has not produced bill and builties relating to the transaction which could be relevant to identify to whom the transaction relates. In the cross-examination the person concerned has refused to recognize the applicant and has not admitted that any booking was made by the applicant. He submitted that since the Revenue wants to rely upon the entries of the booking register seized from the premises of the Transport Company against the applicant, burden lies upon the revenue authority to prove that the said entries related to the applicant. He submitted that in the present case, revenue had failed to prove that such entries of the register related to the applicant. In support of his contention, he relied upon the decision of this Court in the case of S/S Ram Kishun Lal Beni Prasad V/s. Commissioner of Sales Tax,2006 44 STR 869 . Learned Standing Counsel relied upon the order of the Tribunal and the authorities below.;