At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE YASHWANT VARMA
For the Applicant: Bharat Ji Agarwal, Senior Advocate, Shubham Agrawal, Advocate. For the Opposite Party: A.C. Tripathi. Standing Counsel.
1. Heard Sri Shubham Agrawal, learned counsel for the revisionist and Sri A.C. Tripathi, learned Standing Counsel for the respondents.
2. This revision has been preferred against a decision of the Tribunal dated 21 May 2007. The Tribunal in terms of the order impugned has set aside the decision of the First Appellate Authority which had accorded relief to the assessee. The dispute itself arises out of a survey which is stated to have been conducted on 14 May 2003 in the premises of M/s Jai Bharat Industries at Agra. During the course of this survey a diary was found in the premises which contained certain entries which were viewed by the respondents as indicative of sales made by the revisionist. On this basis its books of account were rejected. A best judgment assessment was consequently undertaken. The First Appellate Authority however found that irrespective of the controversy which surrounded the diary and its entries, it was the admitted position that the transactions in question had been taxed in the hands of M/s Jai Bharat Industries. In view thereof it took the position that no tax could be levied on the revisionist all over again especially in light of the provisions of Section 3AAAA of the 1948 Act. In the departmental appeal which was taken before the Tribunal, the Tribunal has overlooking this unequivocal finding returned by the First Appellate Authority proceeded to re-affirm and restore the view taken by the Assessing Authority. The Court notes that no submission in challenge to this finding recorded by the First Appellate Authority was addressed before the Tribunal. The Tribunal has neither examined the matter from this angle nor has it relied upon any evidence which may have tended to indicate that the First Appellate Authority's finding was factually incorrect. Since admittedly the transactions in question had already been taxed in the hands of M/s Jai Bharat Industries in terms of the provisions of Section 3AAAA, no tax could have been levied upon the revisionist-assessee. The Tribunal in failing to consider this aspect of the matter has clearly committed an error which is apparent on the face of the record.
3. Accordingly and for all the reasons noted above, this revisi
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on is allowed. The judgment and orders of the Tribunal as well as the Assessing Authority dated 21 May 2007 and 31 December 2004 respectively, are set aside. The decision of the First Appellate Authority dated 25 April 2005 shall stand restored.