ASHWANI KUMAR MISHRA,J. - (1.) Tribunal while allowing second appeal of revenue has held that selling price disclosed by dealer is not to be believed, as it is lower than the rate disclosed in previous years and it is difficult to comprehend as to how the product could be sold at such lower rates. A further finding was returned that freight rate disclosed by the assessee was not reliable, and that a higher rate had actually been paid and constituted part of assessee's turnover.
(2.) Learned counsel for the revisionist submits that there was no basis for the tribunal to hold that selling rate of Hard Coke, Nut Coke and Dust Coke was Rs. 4,300/-, Rs. 3,600/- and Rs. 2,300/- per ton respectively. Submission is that law is otherwise settled that it is for the assessee to decide the manner in which it chooses to undertake its business and unless there is material to hold it otherwise the rates indicated by the assessee at which it has sold its product need not be questioned. Reliance is placed upon a decision of this Court in Commissioner of Sales Tax v. M/s. Saurashtra Chemical, Kanpur, 1996 UPTC 178 , in which following observations have been made in para 8:- "8. It would be wrong to say that the Act clothe the taxing authority with any power or jurisdiction to dicate how a dealer or an assessee should conduct himself in his business affairs. It is essentially for the tax payer to manage his business affairs or to conduct his business according to his wisdom or otherwise. In the instant case, if the assessee thought it proper in order to promote the sale or to push its product in the market to allow trade discount of varying amounts to its customers, depending upon the market situation and other relevant factors, the Revenue cannot legally object to it nor it can take any exception to the manner in which the assessee has conducted its business. The account books can be rejected only on the grounds which are well established of which some reference has been made earliers. The claim of the assessee that it had sold the goods below the expected market price, may be a warning to put the revenue on alert which may call for a thorough and detailed scrutiny of the account books. However, if no adverse materials is found despite the scrutiny, the account books cannot be rejected on suspicion and surmises alone. Where the genuineness and regularity of the accounts are not challenged, the accounts are relevant and are prima facie proof of the entries and the correctness thereof under Section 34 of the Evidence Act. To put it differntly, the rejection of account books cannot be made on pretent. If the returns could be substantiated and the figures disclosed therein are verifiable from the account books in which no defect is noted, the Assessing Authority is not legally empowered to reject the account version and to proceed to make assessment on best judgment in disregard of the account books and the disclosed results."
(3.) Reliance is also placed upon decision of this Court in M/s. Muthiganj Upbhokta Sahkari Samiti Ltd. v. Commissioner of Trade Tax, 2007 UPTC 843 , in which following observations have been made in para 6:- "6. I find substance in the argument of learned Counsel for the applicant. No defect has been pointed out in the books of account. It is wrong to say that the evidence relating to the freight could be furnished. In rely to the show cause notice, it was submitted that the freight was paid as per the builty and the payments made to the driver was duly recorded in the cash book. To the contrary, no evidence has been adduced. Allegation of the Assessing Authority as well as the Tribunal that the freight @ Rs. 275.71 per ton furnished by the applicant was less and the selling rate was also less in comparison to the prevailing rate, are vague and without any basis. No discrepancies have been pointed out in the books of account. It has been pointed out that what was the prevailing rate during the year under consideration and why the selling rate was less. In my view in the absence of any material of suppression or any defect in the books of account, the rejection of books of account is justified.";