Sarva Shri Owens Bilt Limited vs The Commissioner Trade Tax

This revision, u/s 11 of the U.P. Trade Act, has been preferred against the judgment and order dated 5-3-2005, passed by the Trade Tax Tribunal, Uttaranchal, Dehradun, in Misc. Appeal No. 1/2000 (1995-96).

The following substantial questions of law have been pressed in this revision petition:

Whether on the facts and circumstances of the case the learned Tribunal was justified in law in rejecting the application of assessee u/s 12B only on the ground that it could not be filed before the first appellate authority ignoring the fact that first appellate authority has decided the case of the appellant exparte, so there was no occasion to assessee to move the application u/s 12B of U.P. Trade Tax Act?.

Whether on the facts and circumstances of the case the learned Tribunal was justified in law in giving credit grant of Rs. 20,98,190-70 on the account of goods rejection treated it erroneously as goods return while there were ample evidence before learned Tribunal regarding credit given by the assessee to the customer on account of breakage etc?.

The facts of the case are that during the assessment year 1995-96 the assessment order was passed on 31.3.98. The Assessing Authority accepted the account books of the applicant but did not accept the return of goods in the shape of breakage etc. The assessee could not produce the form 3-B relating to the sale of glass bottles for Rs. 1,17,11504/- and sale relating to the scrap of Rs. 43,019/-. The Assessing Officer imposed tax at the rate of 5% instead of 2.5% in the absence of form 3-B. Therefore, the Assessing Officer on turn over of Rs. 29,43,08,706/- imposed tax of Rs. 1,07,36,928-77 which the assessee have admitted tax liability for assessment year 1995-96 for Rs. 1,03,37,523-50. The assessee preferred appeal before the Deputy Commissioner (Appeal) who dismissed the appeal. Thereafter the assessee preferred appeal before the Trade Tax Tribunal, Bench Muzaffarnagar, who also dismissed the appeal. The assessee thereafter filed application u/s 22 of the Act for amendment of the earlier order which was also rejected by the Tribunal vide impugned order dated 5.3.2005.

Feeling aggrieved, the revisionist has preferred this revision before this Court.

We have heard the learned Counsel for the parties and perused the record.

So far as the rejection of application of the assessee filed before the Tribunal u/s 12B is concerned, the assertion of the assessee is that he had got form 3B only after closer of the assessment proceeding and he could not produce the said documents before the assessing authority. The assessee did not produce that evidence before the first appellate authority and in the second appeal the said additional evidence was sought to be taken on record.

Section 12B of the U.P. Trade Tax Act prohibits production of additional evidence, whether oral or documentary, before the Appellate Authority or the Tribunal, except where the evidence sought to be adduced is evidence, which the assessing authority had wrongly refused to admit or which after exercise of due diligence was not within in knowledge or could not be produced by him before the assessing authority, and in every such case, upon the additional evidence, being taken on record reasonable opportunity for challenge or rebuttal shall be given to the commissioner. The assessee as well as he representative of the Department did not appear before the first appellate authority and the Deputy Commissioner (Appeal) decided the appeal on the material available before it. The assessee although filed three copies of Form No. 3-B but the original were not brought on record. Further no application u/s 12B of the Act has filed for permission to accept the additional evidence. In the stage of second appeal original form 3-B were filed for the first time. The assessee was not vigilant pertaining to his claim. Before Deputy Commissioner (Appeal) no application for permission u/s 12B of the Act has been filed. The assessee had knowledge of these documents at the first appellate stage. We, therefore, hold that the Tribunal was justified in not accepting the documents at a belated stage. The question No. 1 is decided in favour of the Department and against the assessee.

The second substantial question of law relates to giving credit grant of Rs. 20,98,190-70. The claim of the assessee was that goods rejection to the tune of Rs. 20,98,190-70 be accepted instead of goods returned, as the broken glass have been transported back to the assessing company. The assessee has claimed that the broken glass was not returned back to its company from the purchasers and from the point of view of accounting the same was approximated at the site of sale, but the assessee did not produce any evidence in this regard either before the assessing officer, at first appellate stage or before the Tribunal. The claim of the assessee was also rejected on the ground that the said sale return pertains to period of six months later. The finding of the lower authorities on the point do not require any interference by this Court. This question of law is also decided against the assessee and in favour of the Department.

In view of the finding recorded on the substantial questions of law, the revision petition lacks merit and is liable to be dismissed.

The revision is dismissed. The impugned judgment and order passed by the Tribunal u/s 22 of the Trade Tax Act, is hereby confirmed. No order as to costs.