ASHWANI KUMAR MISHRA,J. - (1.) It is urged on behalf of revisionist that the question raised for consideration in the present matter stands adjudicated by this Court in M/s. S.G. Projects Soyepur, Pandeypur, Varanasi v. The Commissioner, Commercial Tax, reported in 2017 U.P.T.C. 331 , wherein following questions were framed for consideration:- "(i) it is held that the turnover disclosed in the Books of Account is higher than the turnover disclosed in the return. (ii) shortage of 4% during transportation of coal has been disbelieved. (iii) the amount payable towards loading and unloading have been shown lesser than what has actually been incurred; and (iv) the assessee was found selling the product at a lower rate than what prevailed in the market."
(2.) After examining the law on the subject, this Court has held as under in paras 8 and 9, while dealing the last question framed:- "8. The last ground relied upon by the Tribunal to discard the books of account is that the assessee has sold goods at a rate lesser than what was the market rate. In that regard, the observation made by this Court in M/s. Hemraj Udyog, Agra (supra) would be apposite. Para-7 of the judgment is reproduced:- "7. It is settled law that it is the business of the taxing officers to guide the businessmen about the manner in which the later should conduct his business. A businessman is expected to earn more so as to able to pay higher income tax nor can the sales tax officer force a trader to sell his goods at a particular price. It is for the dealer to chose at what price he will sell the goods and show much of the goods he will sell and how much he will consume for himself or donate. If the assessing officer feels that a particular trader is behaving in a manner which is different from the other traders in the line the only course open to him is to raise an eye of suspicion and make an investigation. But if he does investigate or if after investigation he does find anything adverse to the assessee he cannot reject the dealer's results simply on suspicion or conjecture. Such view have been expressed by the Courts for a long time and the members of the Tribunal must have known this basic concept of tax jurisprudence. Such view were recently repeated by this Court in the case of Saurashtra Chemicals (Supra). It is painful that a higher judicial body like the Sales Tax Tribunal should uphold such perverse enhancement in the turnover." 9. There is nothing on record to indicate that the assessee has deliberately disclosed a lesser figure in the books of account and that Coal was actually sold at a higher rate. The revenue has, otherwise, not investigated the transaction so as to suggest that the price of coal was, otherwise, higher. In such circumstances, the books of account, could not have been rejected merely for the reason that the commodity was sold at the lower side."
(3.) In the facts of the present case also, the scenario is identical, inasmuch as revenue has not brought on record any material to show that the price of product was higher and that the assessee had disclosed a different rate. The books of account of the assessee, therefore, could not have been discarded for such reason. So far as question no. 2 and 3 framed in M/S. S.G. Projects Soyepur (supra) is concerned, the ratio laid down therein would also govern the facts of the present case.;