# M/S Suresh & Co. Revisionist v. Commissioner of Trade Tax Opp. Party - **Citation:** (2022) 7 ILRA 1171 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-04-05 - **Case number:** SALE/TRADE Tax Revision No. 163 of 2007 - **Bench:** Alok Mathur - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-suresh-co-revisionist-v-commissioner-of-trade-tax-opp-party-48741 - **Pages:** 4 ## Headnote A. Tax Law - U.P. Trade Tax Act 1948 - Section 11 - Merely because the said transaction is reflected in the books of account 1172 INDIAN LAW REPORTS ALLAHABAD SERIES of one party, does raise a presumption about participation of the other party in the said transaction, but solely on the basis of said entry, without any other supporting material in form of documents, independent material evidencing the said transaction, books of account of the other party, an assesse cannot be saddled with tax liability merely on the basis of presumption. Revision allowed. (E-12) List of Cases relied upon:- Om Prakash Sharma Vs Commissioner of Trade Tax, 2009 UPTC 578 ## Text 7 All. M/S Suresh & Co. Vs. Commissioner of Trade Tax 1171 manufacturing concern or articles accumulated for some specific object and issued or drawn upon as needed. 22. ------- 23. Applying the aforementioned principles, I find that the cement which is required by the applicant for use in the construction of factory building and or foundation, as held by the honourable Supreme Court in the case of J.K. Cotton Spinning & Weaving Mills Co. Ltd. [1965] 16 STC 563 ; AIR 1965 SC 1310, which has been followed by the honourable Karnataka High Court in the case of Ballarpur Straw Board Mills Ltd. [1978] 42 STC 401 and this Court in the case of Sivalik Collulose Ltd. 1992 UPTC 1 cannot be said that it is used either directly or even remotely in the manufacture of finished goods. Similar is the case of steel and paints, which too is required only in the repairs of boiler and protection of machineries. They cannot be said to be used even indirectly in the manufacture or processing of goods for sale. Thus, all the three items would not fall under the description of the word "stores", which are used in the manufacture of finished goods." 21. The High Court rejected the contention of the revisionist and held that cement, steel and paints were included in the definition of "consumable stores". 22. The judgment of the Tribunal in the case of Awadh Sugar Mills Hargaon (supra) is firstly distinguishable on the facts inasmuch as interpretation of 'Industrial Paints" is distinguished from 'Paints' which is sought to be included as "Consumable Stores" by the revisionist and secondly, in the said judgment there is no discussion as to whether "Industrial Paints" are utilized in the manufacture of sugar and the revision has been allowed only on the ground that recognition certificate was granted to the revisionist therein. 23. The aforesaid judgment of Tribunal, in out considered view does not lay down the law correctly and we do not approve of the said decision. 24. This Court is of the considered view that "Paints" are not utilized either as raw material utilized for manufacture of sugar nor is so closely connected with the manufacturing process so as to be included as "consumable stores" and therefore the revisionist was not entitled to purchase the same utilizing Form - 3B, and we do not find any infirmity in the judgment of the Tribunal and hence the revisions are dismissed. 24. The question of law is answered in favour of Revenue and against the revisionist. ---------- (2022)07ILR A1171 REVISIONAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 05.04.2022 BEFORE THE HON'BLE ALOK MATHUR, J. SALE/TRADE Tax Revision No. 163 of 2007 M/S Suresh & Co. ...Revisionist Versus Commissioner of Trade Tax ...Opp. Party Counsel for the Revisionist: P. Agarwal Counsel for the Opp. Party: C.S.C. A. Tax Law - U.P. Trade Tax Act 1948 - Section 11 - Merely because the said transaction is reflected in the books of account 1172 INDIAN LAW REPORTS ALLAHABAD SERIES of one party, does raise a presumption about participation of the other party in the said transaction, but solely on the basis of said entry, without any other supporting material in form of documents, independent material evidencing the said transaction, books of account of the other party, an assesse cannot be saddled with tax liability merely on the basis of presumption. Revision allowed. (E-12) List of Cases relied upon:- Om Prakash Sharma Vs Commissioner of Trade Tax, 2009 UPTC 578 (Delivered by Hon'ble Alok Mathur, J.) 1. Heard Sri Pradeep Agrawal, learned counsel for the revisionist as well as Sri Rohit Nandan Shukla, learned counsel appearing for the revenue. 2. Present revision under Section 11 of the U.P. Trade Tax Act, 1948, has been preferred against order dated 27.07.2007, passed by the Trade Tax Tribunal, Bench 2, Lucknow (hereinafter referred to as "the Tribunal") in Appeal No. 367 of 1993 for the assessment year 1984-85. Following questions of law are involved in the present revision : I. Whether the Tribunal was justified in merely interpreting the facts in a different manner and holding that the revisionist is liable to be taxed with regard to a transaction which was recorded in the books of account of third party despite the fact that no corelation between the third party and the revisionist could be established for the said transaction. II. Whether the Tribunal was justified to assess the revisionist with regard to a transaction found in the books of account of a third party despite the specific finding that third party has been using the name of different parties to carry on business out of books of account for which he has been assessed on best judgment basis. 3. Facts in brief of this case are that revisionist is involved in sale and purchase of 'supari' and during course of business same was purchased from M/s Campco Ltd., Kanpur. In the assessment year 1984-85, in the books of account of M/s Campco Ltd., it is shown that revisionist has purchased 'supari' for an amount of Rs.16,70,552.25, while in the books of account of revisionist 'supari' worth Rs.8,44,552.50 is entered, but there was no entry relating to sale of remaining 'supari' worth Rs.8,25,999.75. It is stated that consignment of 'supari' worth Rs.8,25,999.75 was brought thorough Railways and was not entered into the books of account of the revisionist and the assessing officer assessed the revisionist and raised demand on the aforesaid amount, treating it to have been purchased by the revisionist. 4. The revisionist filed appeal against the aforesaid assessment before the first appellate authority, who after scrutinizing the accounts of revisionist and M/s Campco Ltd., came to the conclusion that there was no material which can relate the transaction of sale of 'supari' to the revisionist. The first appellate authority further recorded that it is the onus of the assessing authority to prove that a purchase has been made and therefore the assessing authority should obtain the necessary evidence against the assessee and if it is found that the assessee had made payment or any other evidence is found against the assessee then only the said transaction shall be liable to tax otherwise not. 5. It was assumed by the assessing authority that the revisionist had paid for the said transaction in cash holding that 7 All. M/S Suresh & Co. Vs. Commissioner of Trade Tax 1173 said portion of sale cannot be shown from the books of account of the revisionist. The first appellate authority came to the conclusion that there was no material or evidence from which it can be ascertained that the revisionist was involved in purchase of said 'supari' and allowed the appeal of the revisionist. 6. The order of first appellate authority was challenged by the revenue before the Tribunal and in the first round the matter was remanded back to the first appellate authority for re-consideration. After remand of the matter, the first appellate authority again came to same conclusion and passed order in favour of assessee-revisionist. 7. By means of impugned judgment and order, the Tribunal has recorded finding that books of account of M/s Campco Ltd. clearly indicate that said transaction relate to revisionist-assessee and only on the basis of books of account of M/s Campco Ltd., allowed the appeal of the revenue, attributing the said transaction to the assessee-revisionist and upheld the assessment order passed in the present case. 8. Learned counsel for the revisionist while assailing the order of Trade Tax Tribunal dated 27.07.2007, submits that perusal of the record would indicate that no evidence much less credible evidence was available relating to the purchase of 'supari' by the assessee and consequently the order of Tribunal is without any basis or application of mind and there is no material available on record which can relate the revisionist to the said purchase of 'supari', hence said assessment cannot be made by the assessing authority. 9. While replying to the contentions of the assessee-revisionist, the Tribunal has recorded that there was regular and continuous transaction of purchase of 'supari from M/s Campco Ltd. by the assessee, the consignment of 'supari' was sent from the Banglore to Kanpur. The Tribunal assumed that after paying cash to M/s Campco Ltd. the assessed had obtained benami and fake possession of the said transaction and consequently the assessee never demonstrated the said entry in his books of account, but from the books of account of M/s Campco Ltd., it is established that it is the assessee-revisionist who is the person who has purchased the said goods and hence there was no infirmity with the order of assessing authority. 10. Learned counsel for the revenue has defended the judgment of the Tribunal. He has submitted that there were ample evidence in the form of number of transactions between the assesseerevisionist and M/s Campco Ltd., to come to the conclusion that it is the revisionist who has purchased 'supari' worth Rs.8,44,552.50, which goods were brought against Form-31, which indicates that purchase was made by the revisionist. The said transaction was also recorded in the books of account of revisionist and therefore, there is no infirmity with the order of the Tribunal. 11. Heard learned counsel for the parties and perused the record. 12. From the perusal of order passed by the assessing authority, first appellate authority as well as the Tribunal, it is clear that there is no entry in the books of account of the revisionist with regard to the said transaction worth Rs.8,44,552.50. Even if it is believed, that the revisionist had paid in cash for purchase of said 'supari', then also there is no material which 1174 INDIAN LAW REPORTS ALLAHABAD SERIES can indicate that the revisionist had tendered the said amount in cash. It is only on the basis of presumption that the said transaction has been taxed by the revenue. 13. It is noted that the revenue has relied only on the books of account of M/s Campco Ltd., wherein the said transaction has been shown in favour of the revisionist. It is also noticed that the first appellate authority has noted that it was habit of M/s Campco Ltd. to maintain fake entries of sale, and merely on the basis of the said entry appearing in the books of account of M/s Campco Ltd., it cannot be said that it is the revisionist who had purchased the said 'supari'. 14. Be that as it may, there is no evidence or material available on record which can link the said transaction to the revisionist. In this regard learned counsel for the revisionist has relied upon the judgment of this Court in the case of Om Prakash Sharma Vs. Commissioner of Trade Tax, 2009 UPTC 578, wherein this Court in para 7 has held as under : "7. The fundamental defect in the three orders of the authorities below is that there is no cogent and positive evidence on the record of the Department to show that it is the dealer-applicant, who carried on any business of sale or purchase of silver ornaments by receiving those parcel. The authorities below have sought to tax the dealer-applicant on the basis of presumptions and assumptions. Suspicion, howsoever strong may be, cannot be relied upon. The applicant-dealer is not a registered dealer under the Act and the burden lay on the shoulders of the Department to prove on the basis of the relevant and cogent material that the applicant is a dealer whose turnover is above the exemption limit as prescribed under the Act." 15. Merely because he said transaction is reflected in the books of account of one party, does raise a presumption about participation of the other party in the said transaction, but solely on the basis of said entry, without any other supporting material in form of documents, independent material evidencing the said transaction, books of account of the other party, an assessee cannot be saddled with tax liability merely on the basis of presumption. 16. Considering the aforesaid this Court is of the considered view that there was no material either in the books of account or any other material which can link the said sale of 'supari' to the revisionist and consequently, this Court do not find any infirmity in the findings recorded by the first appellate authority and the Tribunal has come to a erroneous conclusion only on the basis of entries in the books of account of M/s Campco Ltd., Kanpur. 17. In the light of above, revision is allowed. Judgment and order of Tribunal dated 27.07.2007, is hereby set aside. The questions of law are decided in favour of revisionist and against the revenue. ---------- (2022)07ILR A1174 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 27.05.2022 BEFORE THE HON'BLE SIDDHARTHA VARMA, J. THE HON'BLE UMESH CHANDRA SHARMA, J. Jail Appeal No. 75 of 2021 Sonu Kanoujia ...Appellant Versus State of U.P. ...Opposite Party Counsel for the Appellant: