# M/s Raju Cement Store Oel Revisionist v. Commissioner of Commercial Taxes U.P. Commercial Tax

- **Citation:** (2024) 5 ILRA 1896
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-23
- **Case number:** Sales/Trade Tax Revision No. 24 of 2009
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-raju-cement-store-oel-revisionist-v-commissioner-of-commercial-taxes-u-p-51904
- **Pages:** 7

## Headnote

Act,
1948-Survey
of
Petitioner's premise conducted -show cause
notice issued -taxable liability assessed-tax
liability reduced by First Appellate Authority on
the ground that at the time of survey, merely a
sum of Rs. 1,510/- was found in the cash box-set
aside by the Tribunal in Second Appeal-Tribunal
was justified in restoring the order passed by the
Assessing Authority after considering the entire
relevant material found during survey not
rebutted by the Petitioner in its reply- Petitioner
appeared on several dates-but his counsel
neither appeared before the Tribunal nor sought
an
adjournment-Tribunal
was
justified
in
proceeding ex-parte.

Revision dismissed. (E-9)

List of Cases cited:

## Text

1896 INDIAN LAW REPORTS ALLAHABAD SERIES
Manager, raising slogans, indulging in
damaging the company property and the
charges leveled against him were proved.

34. The petitioner had given an
application to the Enquiry Officer for being
represented in the enquiry by an outsider,
which request was not accepted by the
enquiry officer. The Enquiry Officer has
erroneously mentioned that the petitioner
had given an application that he will
represent
himself,
but
this
error
is
insignificant and it does not vitiate the
outcome of the enquiry. At one place the
Enquiry Officer has wrongly mentioned the
name of PW-1 as Sri Amitabh Nandi
whereas PW-1 was Sri. Sanjay Sablok and
this error also does not vitiate the enquiry
report as there is sufficient material to
support the findings of the enquiry.

35. The Enquiry Officer has found that
the petitioner had made 'Gherao' of the
General Manager of the Company alongwith
other employees. He was present where
speeches were being given, obscene and
intimidating slogans and were being raised
and the General Manager was being forced
to come out of his room to accept the
demands and when he did not come out, the
door of the General Manager Lobby was
broken open. He was 'Gheraoed' for several
hours. The Enquiry Officer also referred to
the photographs of the incident, newspaper
cuttings, FIR, Charter of demands, medico
legal examination reports and report of
damages,
which
established
active
involvement of the petitioner in the incident.
The findings of the Enquiry Officer are
based on cogent material and the same are
not perverse.

36. The burden to prove that the
Enquiry Report was incorrect and the
dismissal order was bad in law lied on the
petitioner as he had sought to challenge the
same, but he did not lead any evidence
before the Labour Court also. Thus the
evidence led by the employer remained
uncontroverted.

37. The petitioner had left the place
assigned to him for performing his duty and
he had involved himself with numerous
other employees, who turned violent
causing
injuries
to
several
persons,
including
officials
of
the
District
Administration, Police and officials of the
company. The aforesaid acts or causing
damage to the company's property and
physical injuries to the company's officials
amount to indiscipline of the lowest
category, which cannot be tolerated by any
employer.
In
the
aforesaid
factual
background, the punishment of dismissal
from service cannot be said to be
disproportionate.

38. The Labour Court has not
committed any illegality in upholding the
order of dismissal of the petitioner from
service. The Writ Petition lacks merit and
the same is dismissed.
----------
(2024) 5 ILRA 1896
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Sales/Trade Tax Revision No. 24 of 2009

M/s Raju Cement Store Oel ...Revisionist
Versus
Commissioner of Commercial Taxes U.P.
Commercial Tax ...Opposite Party

Counsel for the Revisionist:
P. Agrawal
5 All. M/s Raju Cement Store Oel Vs. Commissioner of Commercial Taxes U.P. Commercial
 Tax
1897
Counsel for the Opposite Party:
C.S.C.

U.P.
Trade
Tax
Act,
1948-Survey
of
Petitioner's premise conducted -show cause
notice issued -taxable liability assessed-tax
liability reduced by First Appellate Authority on
the ground that at the time of survey, merely a
sum of Rs. 1,510/- was found in the cash box-set
aside by the Tribunal in Second Appeal-Tribunal
was justified in restoring the order passed by the
Assessing Authority after considering the entire
relevant material found during survey not
rebutted by the Petitioner in its reply- Petitioner
appeared on several dates-but his counsel
neither appeared before the Tribunal nor sought
an
adjournment-Tribunal
was
justified
in
proceeding ex-parte.

Revision dismissed. (E-9)

List of Cases cited:

1. Commissioner of Sales Tax U.P. Vs Kumaon
Tractors & Motors: (2009) 9 SCC 379

2. Commissioner, Commercial Tax U.P. Lucknow
Vs S/S D.I.C. India Ltd. 2024:AHC:13269

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Shri Amar Mani Tripathi
holding brief of Shri Pradeep Agrawal
Advocate the learned Counsel for the
petitioner and Shri Sanjay Sareen, the
learned
Additional
Chief
Standing
Counsel for the State.

2. By means of the instant Revision
filed under Section 11 of the U.P. Trade
Tax Act
1948,
the
revisionist
has
challenged validity of an order dated
16.10.2008 passed by the Trade Tax
Tribunal, Lucknow Bench-III, Lucknow in
Second Appeal No.322 of 2004, which
was filed by the petitioner against an order
dated 28.01.2004 passed by the Joint
Commissioner Appeal 4, Trade Tax,
Sitapur. The petitioner has also challenged
the decision of Second Appeal No.241 of
2004 filed by the Commissioner, Trade
Tax U.P., Lucknow, which appeal has also
been decided by 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.18,00,000/- was assessed, on which the
petitioner's tax liability of Rs.1,76,000/- was
assessed by the Assessing Officer.

7. The First Appellate Authority did
not interfere in the finding of the Assessing
1898 INDIAN LAW REPORTS ALLAHABAD SERIES
Authority regarding rejection of account
books of the petitioner. Yet it substantially
decreased the petitioner's tax liability solely
on the ground that at the time of survey
made at about 4:30 PM on 25.01.2003,
merely a sum of Rs.1,510/- was found in the
cash box of the petitioner.

8. In second appeal, the department
contended that the First Appellate Authority
erred in assessing the petitioner's tax
liability only on the basis of cash amount
found in the cash box of the petitioner's
premises whereas several documents have
been recovered showing sales of goods
worth huge amount, on credit. In such
circumstances, tax liability assessed by the
Assessing Authority could not be reduced
merely on the basis of quantum of cash
received in the petitioner's premises.

9. Slips bearing Nos.36 to 50 found in
the petitioner's premises indicated sale of
goods worth Rs.1,08,625/- by evasion of
tax. Slips bearing Nos.15 to 34 indicated
sale of goods worth Rs.35,708/-, including
Cement worth Rs.15,442/-. Slips bearing
Nos.36 to 50/- established sale of Cement
and some other goods by evading tax. The
source of purchase of Cement and Iron bars
could not be established due to lack of
documentary evidence and, therefore, the
Assessing Authority assessed liability of tax
treating the petitioner to be the manufacturer
of the goods. The First Appellate Authority
did not record any finding regarding lack of
purchase of documents for Iron bars but
regarding Cement, it held that Cement is
manufactured in large factories and the same
could not have been manufactured by the
petitioner.

10. The Tribunal held that although a
sum of merely Rs.1,510/- was found in the
cash box at the time of survey made by the
Special Investigation Branch at 04.30 PM on
25.01.2003 and the petitioner's brother
present at the time of survey claimed that
this was the amount of sale that took place
on the said date, no cash memos were
produced at the time of survey or even
before
the Assessing Authority.
The
petitioner's could not produce regular
account books to support the claim of sale of
goods worth merely Rs.1,510/-. Loose slips
found at the time of survey regarding sale of
Cement, Iron bars, Sand, 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 further held that Iron
bars and Cement, both are manufactured in
large factories but this cannot be a reason for
5 All. M/s Raju Cement Store Oel Vs. Commissioner of Commercial Taxes U.P. Commercial
 Tax
1899
reducing the amount of tax assessed by the
Assessing Authority, when the petitioner
could not produce documents in support of
purchase of Iron bars and Cement both. It is
also recorded in the order passed by the
Tribunal
that
in
spite
of
sufficient
information of the second appeal, nobody
had appeared on behalf of the petitioner in
the second appeal.

13. The petitioner claims that it had
given an application dated 22.11.2008 under
Section 22 of the Trade Tax Act for recall of
the ex-parte order dated 16.10.2008, a copy
whereof was served upon the petitioner on
09.11.2008. The petitioner claimed that the
proprietor and Pairokar of the Firm Anis
Ahmed remain confined to bed from
04.10.2008 to 24.10.2008, but no orders
were passed on that application.

14. However, as the petitioner has
challenged validity of the judgment and
order dated 16.10.2008 by filing a revision,
the application for setting aside the aforesaid
order on the ground that it was passed exparte, loses its significance, as this Court has
admitted the revision for final hearing and
the validity of the order dated 16.10.2008 is
being examined on its merits.

15. The revision was admitted on
22.01.2009 on all the questions of law
formulated in the memorandum of revision,
which are as follows: -

"1. Whether the learned Tribunal
was justified in rejecting the appeal filed by
the applicant and to allow the cross appeal
filed by the Opp.Party, without giving any
reasons enhanced the turnover as fixed by
the First Appellate Authority.

2. Whether the learned Tribunal
was justified in not considering the material
evidence on record and the law laid down by
this Hon'ble Court that in order to
determine the taxable event the onus of
proof lay on the assessing authority.

3. Whether the learned Tribunal
was justified to ignore that the applicant has
not obtained any form 31 from the Trade Tax
Department and is dealing in tax paid goods
and the entire purchases were made within
the State of U.P. which are verifiable from
the purchase vouchers.

4. Whether the learned Tribunal
was justified in enhancing the turnover
determined by the First appellate authority
without controverting the findings recorded
by the First appellate authority and
dismissed the appeal filed by the applicant
by recording 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
1900 INDIAN LAW REPORTS ALLAHABAD SERIES
perusal of the impugned order indicates that
sufficient reasons have been given in the
order for restoration of the assessment made
by the Assessing Authority and setting aside
the order of the First Appellate Authority, as
the order of the First Appellate Authority
was based on the sole reason that merely a
sum of Rs.1,510/- was found in the cash box
of the petitioner, ignoring the documentary
evidence found at the time of survey which
clearly establish sale of huge amount of
goods on credit. Therefore, it cannot be said
that the Tribunal has set aside the order of
the First Appellate Authority and restored
the order passed by the Assessing Authority
without giving any reasons.

17. Regarding the 2nd question
formulated in the memo of revision, suffice
it to say that the Tribunal has taken into
consideration the entire material available
on record, including the slips found at the
time of survey which established large scale
sale made on credit by evading payment of
tax, and it cannot be said that the Tribunal
had passed the order without considering the
material evidence available on record. It is
also relevant to note in this regard that no
documentary evidence in this regard had
been adduced by the revisionist.

18. Regarding the 3rd question relating
to Form 31, the findings of the survey and
the material placed by the petitioner could
not establish that the revisionist is dealing in
tax paid goods only. The revisionist could
not produce any documentary evidence
regarding purchase of huge quantity of
goods and Iron bars. In these circumstances,
the claim of the revisionist that it had not
obtained any Form 31, is without any basis.

19. Regarding the 4th question, the
Tribunal has set aside the order passed by
the First Appellate Authority, which had
been
passed
without
taking
into
consideration
the
entire
facts
and
circumstances of the case and which was
based on perverse findings and it has
restored the well reasoned order of the
Assessing Authority and the Tribunal's
order cannot be termed as perverse.

20. The 5th question has already been
answered while answering the previous
question that the First Appellate Authority
had erred in reducing the amount of tax
assessed by the Assessing Authority, which
assessment was made after considering the
entire record found during survey, including
the slips establishing large scale sale of
taxable goods on credit by evading payment
of tax. In these circumstances, the Tribunal
was justified in restoring the order passed by
the Assessing Authority 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.
5 All. M/s Raju Cement Store Oel Vs. Commissioner of Commercial Taxes U.P. Commercial
 Tax
1901
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 parties present shall be given
reasonable opportunity of being heard and
the Appellate Authority of the Tribunal, as
the case may be, made, after examining of
the relevant records, decide the Appeal:

Provided that if, despite proper
service of the notice either party is not
present, the appeal may be heard and
decided ex-parte."

24. The appellant itself had filed Second
Appeal No.322 of 2004 and, therefore, the
appellant had sufficient knowledge of filing of
the appeal as the same was filed by itself. The
learned counsel for the appellant had attended
the proceedings of appeal on some earlier
dates but on the date of its decision, his
counsel neither appeared before the Tribunal,
nor did he seek an adjournment. In these
circumstances, the provisions contained in the
proviso appended to Rule 68(4) are attracted
and the Tribunal was justified in proceedings
to decide the second appeal ex-parte.

25. Regarding the last question that the
Tribunal has proceeded on extraneous
considerations and has committed factual
and legal errors, the learned counsel for the
revisionist could not point out any material
to establish the allegation that the Tribunal
has
proceeded
on
any
extraneous
consideration.

26. In Commissioner of Sales Tax U.P.
Versus Kumaon Tractors & Motors: (2009)
9 SCC 379, the Hon'ble Supreme Court has
held that Section 11 of the Trade Tax Act
confers a limited jurisdiction on the High
Court to interfere in the order of the Tribunal
only on the question of law and while doing
so, this Court cannot re-appreciate the
evidence.

27. In the case of Commissioner,
Commercial Tax U.P. Lucknow Versus
S/S D.I.C. India Ltd. 2024:AHC:13269, a
Co-ordinate Bench of this Court held that:-

"It is well settled that the Tribunal
is the last fact finding body and that this Court
in revision would not go into an enquiry with
regard to the factual aspects that have been
decided by the Tribunal. In exercise of
revisional jurisdiction, the High Court has a
limited mandate. The scope of revisional
jurisdictional, is primarily focused on
questions of law, jurisdictional errors, or
procedural irregularities. The High Court in a
revision petition must refrain from engaging in
a de novo inquiry into factual matters already
adjudicated upon by the Tribunal, unless
compelling
grounds
warranting
such
intervention are made."

28. As the Tribunal has passed the
impugned
order
after
taken
into
consideration the entire relevant material
placed by the department, which had not
been refuted by the petitioner by adducing
any evidence and the petitioner had not even
disputed
the
allegations
against
him
contained in the show cause notice by giving
a reply to it, the Tribunal has not committed
any error in allowing the second appeal.

29. There appears to be no illegality in
the impugned order dated 16.10.2008
passed by the Trade Tax Tribunal, Lucknow
Bench-III, Lucknow in Second Appeal
No.322 of 2004 and 241 of 2004.
1902 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The Revision lacks merit and the
same is hereby dismissed.
----------
(2024) 5 ILRA 1902
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No. 574 of 2019

M/S KY Tobacco Works Pvt. Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mrs. Pooja Talwar

Counsel for the Respondents:
C.S.C., A.S.G.I.

Uttar Pradesh Goods and Service Tax Axt,
2017-Section 129(3) -Petitioner is aggrieved
by the seizure order, order imposing penalty and
Appellate order-all relevant documents were
present in the vehicle and the goods matched the
invoice and the e-way bill-goods detained on the
St.ment of the driver- that he was transporting
the goods for the second time with same
documents-St.ment of driver not provided-no
burden of proof been discharged by the
respondents-mensrea not proved

W.P. allowed. (E-9)

List of Cases cited:

M/s Anandeshwar Traders Vs St. of U.P. & ors.
reported in (2021 U.P.T.C. [Vol.107]-421)

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. Heard Mrs. Pooja Talwar, learned
counsel for the petitioner and Sri Rishi
Kumar, learned Additional Chief Standing
Counsel appearing for the respondents.

2. The is a writ petition under Article
226 of the Constitution of India wherein the
writ petitioner is aggrieved by the seizure
order dated August 13, 2018, the order dated
August 14, 2024 imposing penalty under
Section 129(3) of the Uttar Pradesh Goods
and Service Tax Act, 2017 and the appellate
order dated January 8, 2019.

3. Mrs. Pooja Talwar, learned counsel
for the petitioner submits that the relevant
documents were present in the vehicle and
the goods matched invoice and the e-way
bill. The sole ground on which the goods
were detained and seized and penalty order
was passed, was the statement supposedly
given by the Driver of the vehicle who
submitted that he was transporting the goods
for the second time with the same
documents. She further submitted that the
primary documents being MOV-01 wherein
the statement of the Driver is recorded has
never been provided to the petitioner.

4. Upon such query being put by the
Court, counsel appearing on behalf of the
respondents submits that he tried to obtain
MOV-01 and the statement of the Driver.
However, it appears that the Officer
concerned has not been able to provide the
MOV-01 till date, in spite of several requests
made to him. Today, the counsel appearing
on behalf of the respondents has provided a
sheet of paper that is supposedly the
statement given by the Driver. However, the
same is not accompanied by the MOV-01.

5. In light of the same, this document
is of very little evidentiary value.

6. Mrs. Pooja Talwar, counsel
appearing on behalf of the petitioner has
placed reliance on a judgement of a
coordinate Bench of this Court authored by
Hon'ble Saumitra Dayal Singh, J., in M/s