M/S Raj Pan Products Private Limited vs Commissioner of Commercial Tax

Ashwani Kumar Mishra, J.—The authorities on the basis of a single transaction amounting to Rs.70,000/-, as it was not reflected in the books of account, has enhanced turnover by almost 28 times of the escaped transaction.

Revisionist asserts that it had already disclosed its turnover of more than Rs.9 crores and had also paid tax upon it. It is only one transaction, which has not been accounted for, and according to the revisionist at best twice the amount of escaped transaction could have been taken into consideration for imposing liability of tax, but the enhancement by 28 times made is wholly disproportionate. It seems that the issue had earlier travelled to this Court in Trade Tax Revision No.327 of 2015, in which following orders were passed on 22.7.2015:-

"Heard Shri S.D. Singh, learned Senior Counsel assisted by Shri Akhilesh Kumar Pandey, learned counsel for the revisionist and Shri B.K. Pandey, learned Standing Counsel for the respondent.

This revision has been filed by the assessee being aggrieved by the order passed by the Tribunal dated 18.06.2015 by which the Tribunal has determined the estimated turnover of the assessee on one single transaction of an amount of Rs.70,000.00.

The Tribunal while passing the impugned order has given no reason why twenty times of the tax payable has been calculated and imposed on the assessee. On the other hand, learned counsel for the assessee has relied on a decision of this Court in the case of M/S Manoj Company, Ghaziabad v. Commissioner of Sales Tax, U.P. Lucknow reported in 1996 U.P.T.C. 875 and has taken a plea that when it is clear that there was a single transaction of the firm then at the most while making an estimate the value of the seized goods plus equal amount thereof could be reasonably taken as taxable turnover. The amount here is Rs.70,000.00

This plea of the revisionist has been rejected by the Tribunal and it has imposed twenty times of the amount, but no reason has been given for imposing twenty times of the amount and even if it is in the discretion of the Tribunal to fix an amount then too some reasonable basis must be there for formation of this opinion. The decision cannot be taken on a whimsical basis. There is a vast difference between two times and twenty times. No reason at all has been given by the Tribunal in the impugned order for fixing twenty times of the amount.

In the facts and circumstances of the case, the matter is remitted to the Tribunal for fresh decision on this aspect of the matter. The assessee may be given an opportunity of hearing while deciding the matter. The Tribunal will decide the matter within a month or by the end of August 2015 whichever is earlier.

Till the decision is taken in the matter, the impugned demand shall remain stayed. The amount to be deposited by the assessee will be 10% of the 1,40,000/-.

The revision stands disposed of. A copy of this order may be given to the learned counsel for the parties on payment of usual charges within 48 hours."

After the matter has been remitted back, tribunal has reiterated its earlier stand and has observed that there is no justification to take a different view from what has already been observed by it earlier. Aggrieved by the subsequent orders dated 27.8.2015 of the tribunal, the assessee has preferred the present revision.

Learned counsel for the revisionist submits that the tribunal has misdirected itself inasmuch as the facts and circumstances of the present case have not been taken note of and the fact that the revisionist has already disclosed its turnover at more than Rs.9 crores has not been examined. It is also stated that one escaped transaction may have been out of some mistake or omission and unless materials exist on record to draw an inference that it was done deliberately, or was being persistently performed, it was not open for the department to have enhanced the assessment by 28 times of the escaped transaction. Learned counsel has placed reliance upon a decision of this Court in M/s Manoj Company, Ghaziabad v. Commissioner of Sales Tax, U.P. Lucknow reported in 1996 UPTC 875.

Sri Pandey, learned Standing Counsel for the respondent submits that against transaction disclosed in the books of account, the assessee was found transporting goods twice over on the old bill and that is why the authorities have rightly held the assessee liable for payment of tax.

I have heard Sri Harshul Bhatnagar, learned counsel for the revisionist and learned Standing Counsel for the respondent.

From the materials placed, this Court finds that the only basis for enhancing the turnover of the applicant is the fact that the assessee had transported goods twice on the same transaction disclosed to the department. It further appears from the record that revisionist has otherwise disclosed its turnover at more than Rs.9 crores and has also paid tax payable upon it. The authorities have not recorded any finding as to how assessment has been enhanced by almost 28 times. There has to be some reasonable basis or nexus between the escaped transaction noticed and the consequential enhancement made by the authorities. This Court had earlier indicated that unless there exists other material to come to a different conclusion, the authorities could enhance the assessment by twice the amount i.e. Rs.1,40,000/-. The observations made by this Court in the order dated 22.7.2015 does not appear to have been taken note of in correct perspective and without any independent material or finding, it has reiterated the view taken earlier by it. There is no finding that assessee had persistently committed such default or that it was done with deliberate intent.

In the facts and circumstances of the present case, enhancement ought not to have been made more than twice the escaped transaction. The question of law raised in this revision is accordingly answered by holding that tribunal was not justified in enhancing the turnover above twice the escaped transaction in the facts and circumstances of the present case, and the enhancement to the tune of 28 times is not justified.

Revision is allowed by answering the question in favour of the assessee.