TaxTMI 
TaxTMI 
TaxTMI 
2024 (5) TMI 1267
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....the same order. 3. The learned Additional Chief Standing Counsel raised a preliminary objection that the petitioner has challenged orders passed in two separate second appeals. Even if both the second appeals were decided by a common judgment and order, since the order decides two separate appeals, two separate revisions ought to have been filed. 4. The learned counsel for the petitioner could not dispute this preliminary objection. 5. Although there is force in the preliminary objection raised by the learned Additional Chief Standing Counsel, since the revision was admitted by means of an order dated 22.01.2009, I do not think it would be proper to dismiss the revision of the preliminary objection and in the interest of justice, I proceed to decide the revision on its merits. 6. Briefly stated, facts of the case are that a survey of the petitioner's premises was conducted by the Special Investigation Branch of Trade Tax Department on 25.01.2003. On the basis of findings of the survey, a show cause notice was issued to the petitioner, to which he did not submit a reply. After taking into consideration the uncontroverted findings of the survey, taxable sale of goods worth Rs. 18....
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....and, Morang, Gitti etc. on credit prove that huge quantity of goods were sold on credits also, besides some sale on cash payments. 11. The Tribunal found that on the basis of documents found at the time of survey, a show cause notice was issued to the petitioner and when the petitioner did not submit any reply to the show cause notice, tax liability of Rs. 1,76,000/- was assessed, which does not appear to be improper keeping in view the facts and circumstances of the case. Although the First Appellate Authority concurred with the conclusion of the Assessing Authority regarding absence of account books and rejection of the petitioner's claim which was not supported by the account books, it drastically reduced the tax liability of the petitioner merely on the basis of the amount of cash found in the cash box, which was not a valid basis of reduction of the tax liability. 12. The Tribunal held that when documents have been recovered at the time of survey establishing sale of huge amount of goods on credit, the decision of the First Appellate Authority reducing the tax liability merely on the basis of cash from the premises of the petitioner, was unsustainable in law. The Tribunal fu....
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....ding the perverse findings of facts which gives rise to this Revision. 5. Whether the learned member Tribunal was justified to enhanced the turnover determined by the First appellate authority merely on the basis that the cash of Rs. 1510/- was found at the time of survey at 4.30 P.M. when the applicant himself has shown sales of Rs. 8,100/- per day 6. Whether the learned Tribunal was justified in ignoring the findings recorded by the First appellate authority wherein each and every parcha seized during the course of survey was duly considered and determined the turnover on the said basis. 7. Whether the learned Tribunal was justified to reject the application for recall which was duly supported by an affidavit and the medical certificate without any cogent reason. 8. Whether the learned Tribunal was justified in proceedings on extraneous consideration and committed not only factual but legal error as well which has vitiated the findings recorded in the order." 16. So far as the 1st question of law framed in the revision is concerned, a bare perusal of the impugned order indicates that sufficient reasons have been given in the order for restoration of the assessment made b....
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....hority after taking into consideration the entire relevant material found during survey, which was not rebutted by the petitioner by submitting any reply to the show cause notice that was issued to him before making the assessment. 21. Regarding the 6th question, it is apparent that the First Appellate Authority had not taken into consideration the sale made by the petitioner on credit by evading tax and had assessed the amount of tax merely on the basis of cash amount found in the cash box. Therefore, the Tribunal was fully justified in setting aside the order passed by the First Appellate Authority and restoring the appeal passed by the Assessing Authority. 22. Question No.7 framed in the memo of revision, i.e. "Whether the Tribunal was justified in rejecting the application for recall?" is contradictory to the submissions made by the learned counsel for the petitioner that the application was not considered and decided by the Tribunal. When the application was not considered, there is no question of its rejection. 23. Moreover, Rule 68(4) of U.P. Trade Tax Act 1948 provides as follows:- "On the date of hearing, if all the relevant records of appeal have been received, the p....