At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE YASHWANT VARMA
For the Applicant: Rishi Raj Kapoor, Advocate. For the Opposite Party: A.C. Tripathi, S.C.
Yashwant Varma, J.
1. Heard learned counsel for the revisionist and Sri A.C. Tripathi, learned counsel for the respondent.
2. This revision has been preferred against the decision of the Tribunal dated 24 August 2007 which has while setting aside the judgment of the First Appellate Authority upheld a best judgment assessment undertaken against the assessee.
3. The assessee who is stated to have been engaged in the manufacture of bricks and was operating a brick kiln is stated to have issued a communication dated 26 April 2001 and 21 May 2001 informing the respondents that due to financial constraints it was not undertaking any manufacturing operations during the Financial Year 2001-02. The business premises of the assessee were inspected on 25 March 2001 and 11 June 2002. On the basis of materials and evidences collected in the course of these two surveys, the assessing authority proceeded to negative the contention of no manufacturing activity having been undertaken during the assessment year in question.
4. When the matter reached the board of the First Appellate Authority, it took the view that the entire assessment was based on surmises and was not backed by any material or evidence which may have established or even tended to indicate that the assessee had undertaken manufacturing operations in the course of the assessment year in question. It has also taken note of the fact that for the earlier assessment years, the revisionist had submitted his books of accounts which established the existence of a substantial quantity of closing stock. On the basis of the above, the First Appellate Authority held in favour of the assessee and returned a categorical finding that the firing period must be treated as "Nil". This view of the First Appellate Authority has however, been interfered with by the Tribunal.
5. The Tribunal has, in the considered view of this Court, committed mistakes similar to those made by the assessing authority. Admittedly there was no material or evidence to establish that the assessee had undertaken manufacturing operations during the assessment year in question. The fact that notice of intent not to undertake manufacturing operations had been duly communicated to the respondent was neither disputed nor doubted. The respondent could not have levied tax upon the assessee based upon materials collected during the course of these two surveys simply because they were conducted on dates which fell outside the assessment year in question. At least one of the surveys of 11 June, 2002 was outside the scope of the assessment year in question. Even if the report drawn up on the basis of the survey conducted on 25 March 2001 is taken into consideration, the respondent had not been able to dislodge the contention of the assessee that the stock found present on that
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date was the closing stock of the previous year. Accordingly, this Court finds it unable to uphold the judgment of the Tribunal. 6. The revision is accordingly allowed. The order of the Tribunal is set aside. In consequence the decision of the First Appellate Authority shall stand restored.