2019 (4) TMI 235

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....rder passed by the first Appellate Authority in a cursory manner and by disbelieving the disclosed purchases made by the applicant from the registered dealers only on the basis that the alleged sellers have not disclosed the sales in their returns, by overlooking the evidences like banking transactions, 9R returns and Invoices having been filed by the applicant, and losing sight of the fact that the applicant has no control over the sellers in filing their returns?" 3. Case of revisionist is that he is a registered dealer and is running a Flour Mill, and is manufacturing and selling Atta, Maida, Suji for which he purchase wheat as raw material from within and outside the State of U.P. The dispute relates to the assessment year 2015-16, ite....

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....TC) had admitted that it was a registered dealer and no interference can be made from the purchases made by it. 5. Against the aforesaid order, revisionist filed first appeal before the Additional Commissioner. The said appeal was allowed by order dated 07.07.2018, which accepted the Account books of the disclosed turnover against the said order. Department filed a second appeal before the Commercial Tax Tribunal, Gorakhpur Bench, Gorakhpur. On two grounds, firstly, that the S.I.B. conducted survey on 23.05.2015 and during survey, no regular Account books were found, nor dealer was present for verification of the stock and during survey 15 quintals of Atta and 31 quintals of wheat were found less. It was further averred in the appeal that....

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....tment regarding the survey made on 23.05.2015 and, further, the findings recorded by the Tribunal to the extent that as the selling dealer has not disclosed the sale for the month of April, May and June 2015 in his return, the purchases so made by the revisionist shall be held to be from the unregistered dealer. As the tribunal is the last fact finding court, it should have recorded specific finding for arriving at such conclusion. 10. Further the judgment in case of On Quest Merchandising India Pvt. Ltd. (supra) has rightly held as under: "54. The result of such reading down would be that the Department is precluded from invoking Section 9 (2) (g) of the DVAT to deny ITC to a purchasing dealer who has bona fide entered into a purchase t....