MANOJ KUMAR GUPTA,J. - (1.) Heard Sri Praveen Kumar, counsel for the revisionist and Sri Avinash Chandra Tripathi, learned standing counsel for the respondents.
(2.) The present proceedings relate to the Assessment Year 2001-02 under the U.P. Trade Tax Act. The applicant, who is engaged in manufacture and sale of bricks disclosed its taxable sales for the year under assessment as Rs. 2,51,900/- with tax liability of Rs. 25,190/-, which was duly deposited by him. The Assessing Authority by order dated 3.10.2006, fixed the turnover of the applicant as Rs. 14,10,420/- on the basis of best judgement assessment, as during survey of the brick-kiln on 31.3.2001 and 31.8.2001, the applicant had failed to produce the books of account. He determined the tax liability of the applicant at Rs. 1,28,135/-. The applicant preferred a First Appeal. The Joint Commissioner (Appeals) vide order dated 21.1.2007 allowed the appeal in part and fixed taxable turnover of bricks at Rs. 8,91,900/-, with tax liability of Rs. 99,295/-. The applicant still not being satisfied carried the matter in a Second Appeal before the Trade Tax Tribunal. The department also filed a separate appeal. The Tribunal accepted the course adopted by the Assessing Authority in basing its assessment on best judgment regard being had to the fact that the applicant failed to produce the books of account in the survey conducted on 31.3.2001 and 31.8.2001. The Tribunal, thereafter, proceeded to examine the finding regarding the taxable turnover. The Tribunal found that during the first season from 1.4.2001 to 14.5.2001, the manufacturing was carried on for 44 days in regard whereof, there is no dispute between the parties. The second season, according to the applicant lasted for 30 days, whereas the Assessing Authority assessed it as 38 days. The Tribunal reduced it to 34 days. The Tribunal also accepted the contention of the applicant that the brick-kiln is situated in the proximity of a river and, thus, the quality of the bricks manufactured by the applicant were of inferior quality and, thus, in place of prevailing price of Rs. 900/- per thousand bricks as applied by the Assessing Authority and the First Appellate Authority, it was reduced to 875/- per thousand bricks. The other allowances were also allowed by the Tribunal, keeping in mind the fact that the assessment was based on best judgment and which is based on estimation only. The Tribunal, accordingly, allowed the appeal in part and reduced the tax liability, so that the total tax now determined is Rs. 88,420/-.
(3.) Counsel for the applicant contended that the finding of the Tribunal regarding purchase of wood from unregistered dealers for use as fuel was wrong. It is submitted that the applicant had not purchased any wood but used the wood from the nearby village which was available in plenty.;