2019 (11) TMI 1129

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... inform the department about the starting or closure of firing (Phukai) ? 2. Whether in the absence of any such provision making it mandatory for Brick Kiln owner to inform the Department about the stopping of firing (Phukai) the findings recorded by the Department and the Tribunal regarding the period for which the Brick Kiln was run, is sustainable in law or perverse ?" The contention of Shri Mudit Agarwal, learned counsel for the revisionist with regard to the aforesaid questions of law is that there is no such requirement in the U.P. Trade Tax Act, 1948 requiring the brick kiln owner to furnish intimation to the Sales Tax Authority/Assessing Authority about the closure of the Brick Kiln or the period it has been functioning. In this ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....assessee to inform the Assessing Officer about the closure of Brick Kiln any prudent businessman in order to avoid tax liability would do it and there is no reason as to why the revisionist should not have done something which is ordinarily practiced by others in the same business as has been noted by this Court in the judgment rendered in S/S. Malik Raj Arora (supra). Having heard the learned counsel for the parties and perused the records as far as the question no. 1 is concerned, no doubt none of the counsel for the contesting parties could point out any such provision in the Act, 1948 mandatorily requiring the assessee to inform the Assessing Officer about the closure of Brick Kiln, however, the Court finds merit in the submission of M....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... to show that the Brick Kiln was not functional after the alleged date of closure. No such evidence was led by the revisionist whose accounts were rejected which has not been put to challenge. The Assessing Officer has assessed the period during which the Brick Kiln remained operative as 38 days based on his best judgment assessment. As has been observed in the decision of S/S. Malik Raj Arora (supra) once the books of account are rejected it lies in the discretion of the Assessing Authority to make a best judgment assessment. While making a best judgment assessment there is always some room for guess work. To what extent an increase in the amount of turnover is justified so as to save it from the vice of being arbitrary or capricious depen....