42 1r GeneralSales Tax Reference Noh of2001 1 1 Va INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Dateof Mls OmegaBrightSteels Pl Ltcl Faridabad Petitioner Versus The State of Haryana Respondent 1 CORAM HONBLE MR JUSTICE ASHUTOSH MOHUNTA HONBLE MRJSTICE MEHINDER SINGH SULLAR 0 C3 Presentle MrCLGoyal Senior Advocate with I MSandeepGoyalAdvocate for the petitioner C5 MGagandeep SinghWasu DAG Haryanafor the respondent I Mehinder Sincih Sullar J Z The crux of the facts relevantfor disposalof presentreference and from the record is that the petitionerassessee Mls OmegaBright SteelsPl Ltd or brevitythe assesseeIwas dealingin sale and purchaseof I steel wire rods oronS SteeO1 the wake of inspectionof its business premises 08 somesuspiciousdocuments includingtwo diarylexercise note books were taken intopossessionThe examination of these documents revealed that the entries 7 Z madetherein did not find mentioned in the regularbooks of accounts 1 2 Havingcompletedall the codal formalities the AssessingAuthority assessedthe transactions Nhich did not find placedin the books of accountsl calculatedand framed the assessment vide order dated 91991 on the basis of best judgmentassessment under the provisionsof HaryanaGeneral Sales Tax Act 1973 for shott the Actl 3 On appealthe order of assessment was upheldby the Appellate AuthorityThe Sales Tax Tribunal also upheldthe orders of the authoritybeiow and dismissed the appealsof the assessee vide order dated 261 999 The 60 review petitionfiled by the assessee under section 41 of the Act was also dismissed with regardto the sale transactions in questionHowever in the wake of reference of the assessee under section 42 of the Act the Tribunal referred the followingquestionsof Iaw for determinationof this Coun vide order dated Parkash Om 2012.11.20 11: 23 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:57 I attest to the accuracy and integrity of this document 43 4 GeneralSales Tax Reference Noe6 of2001 2 a W t 282000 1 Whether in thefactsandcircumstancesofthecase the asseSSlngauthority is boundto makeenquiriesbefore the transactionsin the allegeddiary as salewhileknowingthepurchasing parties9 2 Whetherthetransactionsbetweenthefactoryand its retailcentre can beheldas Sale 4 Now the corequestionthat arises for consideration is whether the saletransactions entered in the diaries recovered from the business premisesof theassessee can be termed as sale or authorityis bound to make enquiriesIn 0 0 thisrelevant connection I C5 5 Having regardto the rival contentionsof the Iearned counsel for the I partieswe are ofthe consideredopinionthat the salel transactions by the assesseein favour of third pattiesentered in the diaries recovered from the Z factory premises of the assessee duringthe course of inspectionwould amount tosale for the purposes of Ievyingtax under the Act The sale has been deOned I undersection 2 1of the Act which is reproduced as underl 08 ll saW means any trr ofpropertyin goodsforcash 0 or paymentor other valuableconsiderationand includes 7 Z il trarr otherwisethan in pursuanceof a contract of propertyin any goodsfor cash deued paymentor CL other valuableconsideration iltransferofpropertyin goodwhetheras goodsor ln come otherformlinvolvedin the executionof a works contract enteredim0 on or a8erthe18 dayof April 1984 iiOdeliveoIof goodson hire purchaseor any systemof paymentbyinstallmentse 9 4ivltrar of the rightto use any goodsfexcepttents kanats chhodari crockeryutewils furnitureand all othergoodsdealt with bythe tent dealers as also other allied dealersfor decorationand lightingpurposesJ for anypurpose ovhether or not for a speci8edperiodor cash deferred payment or othervaluableconsideratione vlsupplybywayoforaspartofanyserviceor in any other mannerwhatsoeverofgoodsbeingfood or any other Parkash Om 2012.11.20 11: 23 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:57 I attest to the accuracy and integrity of this document 44 r GeneralSales Tax ReferenceNoe6of2001 3 0 articlefor humancontion or any drinwhether or not where such supplyor servlce lS for cashdeferred payment or othervaluableconsideration anysuch transferdelivery or supplyof any goods shallbe deemedto be a saleof thosegoodsbytheperson making thetransferdelivery or supplyto a person to whom such transferdelivelyor supplyis made but does not include a mortgage chargeorpledge Providedthat a dealer who hascharged tax or has 1 C madeuse ofauthorityof his registration certijlcate under thisAct or the Central Sales Tax Act 1956 duringthe 0 18 dayofApril 1984 to 3P day ofch 0 1987shall be liable to pay thetax to theextent ofcharging I C5 oftax or tax on thegoodspurchased on theauthorityof his certulcate and used in the executionof the I workscontract as the case maybe and for4 thispurpose Z subclause o and sulclause shall be deemedto have comeintoforcewitheHectfrom the 18 dayofApril1984 P3 C1 6 It is not a matter of disputethat the Commissioner has dismissed I the appeal of the assessee vide order dated 71995 and the Tribunal has 08 upheld the order of the AppellateAuthorityand also dismissed the appealof the oo assessee videorder dated 261 999 the operativepartof which is as under I I haveconsideredthematter cczrefully and have also seen thefactson recordand the ordersof assessments passedin thiscase TheAssessingAuOwitywhiledecidingthe case hasgivendetailsofsuchentries theexercise notebooksbearingNo51I and 1411whichwerenotfound enteredin theregularbook of accoums Thepleaof the counselfor the appellant that thesewere merelymessages receivedfromtherespective buyersand were noteddown by the peon is unbelievableand cannot be accepted as someof the entrieswere dulyfoundentered in the regular n9L boolu ofaccoutus while some were notfoundentered The Assessing Authority was thereforejlillyjustied in treating suchtransactionsas salesout ofregularbooFf accoun and assessing the same to tt7x4ccordingly theorders of the lower authoritiesare fully in accordancewith law based on record and the same are herebyupheld Accordinglythe appealsfail and are herebydismissed Parkash Om 2012.11.20 11: 23 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:57 I attest to the accuracy and integrity of this document 45 GeneralSalesTax Rderence Noe6of2001 4 1 7 therebythe perusalof the recordwould reveal that during the course of two diarylnote books were recoveredfrom the business of the assessee containingthe sale transactionswith thethird parties the Assessing made enquiries and duly dealt with each of sale detected from the diaries some of which were found and some of which were not found entered in the regularbooks of accounts and rightlyassessedthe tax Iiabilityof the assessee 1 lr 8 In the Iight of the aforesaidreasons it is held that in the instant 0 case theauthorities below have duly made enquiriesbefore concludingthe C in the diaries as sale which were not entered by the assesseeln C9 the books of accounts in order to evade the paymentof tax Since the transactions of sale are between the assessee and the third pany thus Nol is accordinglyanswered againstthe assessee and questionNo Z didnot requireany determination in the obtainingcircumstances of the case 1 Thus the presentreference is disposed of accordingly I IY1 c oo Judge r 7 5e Z IAshutoshMohuntal 1 Judge Il I9 2010 AS Whether to be referred to reporter7YeslNo R 3 jo 4z Parkash Om 2012.11.20 11: 23 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:57 I attest to the accuracy and integrity of this document