- (1.) S. P. SRIVASTAVA, J. Feeling aggrieved by the orders passed in the four second appeals filed by the revisionist under section 10 of the U. P. Trade Tax Act, 1948 arising out of assessments for the years 1983-84, 1984-85, 1985-86 and 1986-87 which were disposal of by a common judgment and order, he has approached this Court by means of these four revisions under section 11 (1) of the aforesaid Act, seeking setting aside of the impugned orders.
(2.) AFTER hearing the counsel for the petitioner and the learned Standing Counsel representing the respondent on October 4, 1996, the learned Standing Counsel requested for some time to produce the order sheets of the cases relating to the assessment years in question to demonstrate that the assessee himself had declined to avail the opportunity to show cause or lead evidence in rebuttal opposing rejection of the accounts submitted by him saying that apart from his statement he had nothing else to say. The learned Standing Counsel later on produced the records which have also been perused. The facts shorn of details and necessary for the disposal of these revisions lie in a narrow compass. The assessing authority had passed the assessment orders in question on the basis of best judgment assessment, observing that the survey reports indicated that the assessee had not maintained the accounts. It was observed by the assessing authority that when it was decided to issue notice to the revisionist in regard to the facts noticed in the survey reports, the assessee had stated that he had nothing more to say and it was not necessary to issue the notice. The accounts submitted by the assessee were rejected and the assessing authority proceeded to determine the tax liability taking recourse to the best judgment assessment. The assessee thereafter filed the appeals. In the memo of appeals it had been asserted that the assessing authority had erred in placing reliance upon the facts and utilise them against the assessee without affording him any opportunity to rebut the same. It was also asserted that the total turnover of the assessee was below the taxable limit. The appellate authority, however, dismissed the appeals upholding the best judgment assessment. This order was challenged by the assessee in second appeals. The second appellate authority while holding that the survey dated August 5, 1983 relied upon by the assessing authority was irrelevant and should not have been taken notice of dismissed the appeal No. 447 of 1989 relating to assessment year 1983-84 but allowed the second appeal No. 448 of 1989 relating to assessment year 1984-85 and second appeal No. 449 of 1989 relating to assessment years 1985-86 as well as second appeal No. 450 of 1989 relating to assessment year 1986-87 in part reducing the amount of tax by Rs. 2,900, Rs. 3,100 and Rs. 9,900 respectively.
(3.) IT may be noticed that initially the ex parte orders of assessment had been passed. These orders were subsequently recalled in the proceedings under section 30 of the U. P. Trade Tax Act, 1948. The assessing authority in his orders had observed that after setting aside the ex parte order when the case was reopened for hearing, the statement of the assessee was recorded. The record reveals that after the statement of the assessee was taken down and he had concluded his statement, he was again recalled and a statement to the following effect was recorded : " Uprokt Bayan Ke Atirikt Mujhe Kuchh Nanhi Kahna Hai Atah Karan Batao Notice Dene Ki Aawashyakta Nahee. " After recording this statement the evidence was closed and the assessing authority proceeded to decide the case and gave the judgment and order, to which a reference has already been given above. The learned counsel for the revisionist has strenuously urged that once the ex parte order of assessment passed against the revisionist had been set aside and the case had been reopened, it was incumbent on the assessing authority to cause a notice to be served on the dealer stating the reasons for non-acceptance of the turnover of sales or of purchases or both as disclosed in the return if any submitted by the assessee and afford him a reasonable opportunity of furnishing his reply thereto. This protection stood secured in favour of the assessee under the provisions of the Act and rules framed thereunder.;