JAGDISH SAHAI, J. - (1.) THE Additional Judge (Revisions) Sales Tax, Meerut [hereinafter referred to as the Judge (Revisions)] has submitted a statement of the case and the following questions of law under section 11 of the U.P. Sales Tax Act (hereinafter referred to as the Act) for the opinion of this Court : "(a) Whether on the facts and circumstances of the case the additional evidence collected by the department after the completion of assessment and appellate order can be treated as part of the record of such order for the purpose of section 10(3) of the U.P. Sales Tax Act ? (b) Whether evidence collected after the expiry of four years' period of limitation under section 21 of the U.P. Sales Tax Act could be admitted in revision even if it is held as a part of the record ?"
(2.) M /s. Ujjal Singh Autar Singh (hereinafter referred to as the dealers) had a cloth business at Delhi and a branch at Bulandshahr. The Sales Tax Officer, Bulandshahr, started proceedings under section 21 of the Act, against the dealers by issuing a notice to them under that provision. The dealers appeared before the Sales Tax Officer but did not produce any account books, their plea being that they were not "dealers" within the meaning of the Act and they carried on no business within the territorial limits of the State of Uttar Pradesh. The Sales Tax Officer made an ex parte assessment on the basis of the turnover of Rs. 4,00,000 in respect of the two years for which proceedings had started under section 21 of the Act. The dealers appealed to the Assistant Commissioner (Judicial) Sales Tax, who allowed the appeal on the finding that the dealers conducted no business within the territorial limits of Uttar Pradesh. The Sales Tax Commissioner (hereinafter referred to as the Commissioner) filed two revision applications (one in respect of each of the two years) before the Judge (Revisions). During the course of the hearing of the revision applications the departmental representative made applications for filing certain additional evidence which had been procured by the Sales Tax Officer, Special Investigation Branch, Agra. The Judge (Revisions) issued notice to the dealers. On behalf of the dealers it was strenuously contended before the Judge (Revisions) that he had no power to admit additional evidence. Relying upon upon certain cases the Judge (Revisions) upheld the objection of the dealers and and refused to take the additional evidence sought to be produced by the departmental representative. He dismissed both the revision applications filed by the Commissioner but at the instance of the Commissioner made the instant reference. I proceed to answer the two questions referred to us, seriatim. (a) This question seems to have been inartistically framed. Mr. Raja Ram, the learned Junior Standing Counsel, contended that it should be reframed so as to bring into full prominence the real controversy between the parties. It is common ground that question (a) is intended to obtain an answer as to whether or not in the circumstances of the case giving rise to this reference the Judge (Revisions) had the power to admit additional evidence offered by the departmental representative. Since the question framed is capable of eliciting an answer on that point it is not necessary to reframe that question even though it is inartistically framed. There is no express provision in the Act or the Rules framed thereunder permitting the Judge (Revisions) to admit additional evidence in a revision application pending before him. Such a power has been expressly conferred on the Assistant Commissioner (Judicial) by rule 68(1) of the Rules which reads : "68. (1) The Assistant Commissioner (Judicial) shall give notice of the date fixed for hearing of the appeal to the appellant and the Sales Tax Officer who passed the order appealed against. (8) Where the material on the record is insufficient to enable the Assistant Commissioner (Judicial) to pronounce his judgment he may call for such further material from either of the parties as he thinks fit. Such material shall form part of the record." Admitting that there is no corresponding provision in respect of Judge (Revisions) Mr. Raja Ram placed reliance upon rules 4 and 75 of the Rules which we reproduce below : "4. All assessing, appellate and revising authorities shall exercise the powers mentioned in section 13 within their respective jurisdiction. 75. Power to summon witnesses. - The Sales Tax Officer, Assistant Commissioner (Executive), Deputy Commissioner, Additional Commissioner, Commissioner, Assistant Commissioner (Judicial) and Judge (Revisions) or the Additional Judge (Revisions) shall have the same powers as are vested in a court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely : (a) enforcing the attendance of any person and examining him on oath or affirmation; (b) compelling the production of documents; and (c) issuing commissions for the examination of witnesses; and any proceeding before any of the officers aforesaid shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code." Mr. Raja Ram submitted that this rule may be read along with rule 76 which reads : "76. Form of summons for production of a document. - Summons for the production of a document or the attendance of any person shall be issued in Form XVI." Form XVI is reproduced below : "...................................... Whereas your attendance is necessary to give evidence ---------------------------------------------------------------- Whereas the following documents (here describe the documents in sufficient detail to permit of their identification with reasonable certainty) are required with reference to an inquiry under the Uttar Pradesh Sales Tax Act, 1948, ------------------------------------------------ (here enter briefly the subject of the inquiry) now pending before me, you are hereby to appear in person summoned--------------------------------------------------------- to produce, or cause to be produced, the said documents before me on the ....... day of ........... 19....... at ...... o'clock at (place) .... (and not to depart thence until permitted by me). Given under my hand and seal this day of 19."
(3.) IT is contended that by virtue of rule 4 the Judge (Revisions) can also exercise the powers mentioned in section 13 of the Act. Section 13 so far as relevant for our purposes reads : "13. (1) Any officer not below the rank of Assessing Authority empowered by the State Government in this behalf, may, for the purposes of this Act, require any dealer to produce before him any book, document or account relating to his business and may inspect, examine and copy the same and make such enquiries from the dealer relating to his business, as may be necessary : Provided that books, documents and accounts of a period more than four years prior to the assessment year shall not be so required, unless in any special case for reasons to be recorded such officer considers necessary. (2) All books, documents and accounts maintained by any dealer in the ordinary course of his business, the goods in his possession, and his office, shop, godown, vessel or vehicle shall be open to inspection at all reasonable times by such officers as may be authorised by the State Government in this behalf. (3) If any officer authorised under sub-section (2), not being an Assistant Sales Tax Officer or an officer below that rank, has reasonable grounds for believing that any dealer is trying to evade liability for tax or other dues under this Act, and that anything necessary for the purpose of an investigation into his liability may be found in any account, register or document, he may seize such account, register or document as may be necessary. The officer seizing the account, register or document shall forthwith grant a receipt for the same and shall be bound to return them to the dealer or the person from whose custody they were seized, within a period or ninety days from the date of such seizure, after having such copies or extracts taken therefrom as may be considered necessary ......" ;