D. M. Chandrashekhar, J. - These three reference under S. 11(1) of the U.P. Sales Tax Act are at the instance of the same assessee and relate to three different years namely 1969-70, 1970-71 and 1971-72.
2. The common question referred to this court in all the three references is :-
Whether, on the facts and circumstances of the case, remand order to the appellate autority was justified ?'
3. The material facts in all the three references are briefly these :
4. The assessees books of account for all the three years were rejected by the Sales Tax Officer on several grounds. One of such grounds was that the turnover of the assessee in each of the assessment years was disproportionately small in relation to the stocks of goods held by the assessee in the respective years. It is not necessary to set out the other grounds on which the account books were rejected by the Sales Tax Officer because the Assistant Commissioner (Judicial)has not accepted those grounds in the appeals preferred by the assessee. However, the Assistant Commissioner (Appeals) agreed with the view taken by the Sales Tax Officer that the books of account had to be rejected on account of such disproportion between the stocks and the turnover in each of the three years. He remanded the case to the Sales Tax Officer making the following observations :
'It was, therefore, obligatory on their part to make enquiries as contemplated in the aforesaid decision of the Honble High Court, which has not been done. I am, therefore, satisfied that all these three assessment orders be set aside and the case be sent back to the S.T.O. for making enquires in the light of the observations of the Honble High Court. In case no material showing the under-statement of the turnover is found as a result of enquiries I have no doubt that following the decision of the Honble High Court the turnover declared by the appellant shall be accepted by the assessing authority'.
5. Feeling aggrieved by the order of the Assistant Commissioner (Appeals) remanding the case to the Sales Tax Officer, the assessee went up in revision. The Judge (Revisions) was of the view that the directions given by the Assistant Commissioner (Appeals) to the Sales Tax Officer were vague and hence the appellate orders of the Assistant Commissioner should be set aside and that he should be required to give proper directions which could be understood by the Sales Tax officer to whom the Assistant Commissioner had remanded the cases. The Judge (Revisions) also directed the Assistant Commissioner to consider whether under Rule 68(8) of the U.P. Sales Tax Rules the Appellate Assistant Commissioner should not himself call for further information from the parties for deciding the appeals.
6. In Shambhu Ratan Shailendra Kumar vs. Commissioner of Sales Tax this court held that the mere circumstance of the turnover of an assessee being disproportionate to the stocks held by him, would not be a ground for rejecting his books of account. Their Lordships observed thus :
'The only ground which prevailed with those authorities was that the turnover of the assessee appeared to be inadequate. That by itself, is not a ground for rejecting the assessees account books. When the assessees turnover appears to be inadequate, it might give an indication to the assessing authority that the turnover may not have been correctly recorded in the account books. In such an event the assessing authority is expected to go deeper into the account books and to find out positive and concrete material showing the under-statement of the turnover. But in the absence of positives material, the account books cannot be rejected merely on the ground that they do not disclosed adequate turnover. Fall in the turnover may be due to several reasons and not necessarily due to suppression of sales.'
The Asstt. Commissioner (Appeals) appears to have understood the aforesaid observations as enabling him to give a direction to the Sales Tax Officer to find out some new grounds for rejecting the books of account. This view of the Assistant Commissioner is wholly unsustainable. If the grounds on which the Sales Tax Officer had rejected the books of account are not sustainable, the Assistant Commissioner cannot remand the case to the Sales Tax Officer to find our whether there are other grounds for rejecting books of account. In that view of the matter the order of remand by the Assistant Commissioner was wholly unjustifiable. It follows that the remand of the appeal by the Judge (Revisions) to the Assistant Commissioner to give more intelligible directions to the Sales Tax Officer, was equally unsustainable.
7. In the light of the aforesaid discussion, our answer to the common question referred to us in these cases is in favour of the assessee and is as follows :
'On the facts and in the circumstances of the case, the order of the Judge (Revision) remanding the case to the appellate authority was not justified.'
8. The assessee shall get his costs from the Revenue in the set and Advocates fee Rs. 100/-.