- (1.) SUNIL Ambwani, J. Heard learned Standing Counsel for the depatment.
(2.) THE notices sent to M/s Kuberji Traders, Galla Vyapari, Post Kalpi, Jalaun in registered cover vide registered post No. 3215 dated 30. 7. 2008 in TTR No. (511) of 2005, have returned back with remarks that on enquiries it was found that the firm M/s. Kuberji Traders, commission agency is closed. The postman has neither recorded the source of information nor the fact whether Shri Jagdish Prasad Gupta, the sole proprietor of the firm was present. Since the question in this case is whether the assessment should have been made in the name of the firm, which is a sole proprietorship firm of Shri Jagdish Prasad Gupta the Court assumes on the basis of the service report that Shri Jagdish Prasad Gupta has information of the pendency of the trade tax revision. Notice under the rules of the Court shall, therefore, be deemed to be served. S/s Kuberji Traders, Galla Vyapari, Kalpi is a proprietorship firm. Shri Jagdish Prass 1 Gupta is the proprietor of the firm engaged in the business of sale and purchase of foodgrains, pulses and oil seeds. For the assessment year 1996-97 the assessoe produced his account books. The assessee did not admit the tax liability. The dealer produced account books before the assessing authority. The Trade Tax Officer found that out of turn over of Rs. 12,19,940/- the assessee had shown purchase of Chuni of Rs. 6,82,340/ -. The dealer explained that for the month of May he did not show the tax paid purchase by way of an error and that purchase of Chuni was also not disclosed. The account books were rejected on these two grounds and.-an estimation of turn over was made after taking into account the receipts. The Trade Tax Officer by the impugned order dated 20. 11. 1999 estimated the turn over of the dealer at Rs. 72 lacs and imposed tax at Rs. 2,86,496.
(3.) THE first appeal was dismissed on September 25th, 2001 upholding the grounds of rejection of account books. It was found that declared purchase of Chuni also did not give the bill numbers and name and address of the dealers, in the absence of which the purchases were not verifiable. In second appeal an objection was taken by the dealer before the Tribunal that assessment could not be made in the firm name. Relying upon Circular Letter No. 1787 dated 18. 3. 1998 and the judgment in Commissioner of Sales Tax v. M/s Bishan Swarup Bansal, 1984 STI79 (SC) it was held that where business is being run by a person in the name of proprietorship concern, assessment must be made in the name of the person and not in the name of the firm, which is only a trade name. The Tribunal found that notice as well as assessment in the trade name was illegal and thus assessment order cannot be sustained. Thereafter without discussing the matter on the merits, the grounds of rejection of the account books and estimation of the turn over, the second appeal was allowed with directions that entire amount deposited should be returned back to the dealer.;