Anshuman Singh, J.
1. This is a revision filed by the assessee against the order dated 11th April, 1984, passed by the Sales Tax Tribunal, Meerut, relating to the assessment year 1978-79.
2. The assessee deals in wooden furniture. For the year in question its declared turnover was accepted and it was assessed accordingly. Subsequently it was discovered that its authorised representative Sri Rajendra Prakash Garg had received ten forms C during the year in question which was not disclosed at the time of assessment. Out of the aforesaid ten forms one was tried to be misutilised by M/s. Shah Engineering and Hospital Equipment Industries, Ghaziabad. Taking the estimated imports of Rs. 50,000 on each of the rest nine forms, the suppressed purchases were taken at Rs. 4,50,000 and its turnover was fixed at Rs. 5,00,000. At the rate of 10 per cent it was assessed to a tax of Rs. 50,000 under Section 21 of the U.P. Sales Tax Act. Having failed in the first appeal the assessee went up in second appeal before the Tribunal which partly allowed the appeal and reduced the tax.
3. Learned counsel for the assessee has contended in this case that ten forms C alleged to have been received by Sri Rajendra Prakash Garg, authorised representative, were never handed over to the assessee and it did not utilise them. He further contended that Sri Rajendra Prakash Garg was never authorised to receive ten forms C on its behalf. So far as the question that Sri Rajendra Prakash Garg was not authorised to receive ten forms C on behalf of the assessee is concerned, the said argument cannot be accepted. Once the assessee has appointed Sri Rajendra Prakash Garg as its counsel to act on its behalf, he was authorised to receive the forms on its behalf. The Assistant Commissioner (Judicial) and the Tribunal have referred in their judgments that according to Sri Rajendra Prakash Garg ten forms C obtained by him were handed over to the assessee. No material has been brought to my notice on the basis of which the said finding could be supported. It appears that some oral enquiry was made from the counsel concerned and on the basis of that oral enquiry the said finding has been recorded and since the assessee was not afforded any opportunity to cross-examine Sri Rajendra Prakash Garg and nothing in writing to that effect was taken from him by the authorities, the oral information given by Sri Rajendra Prakash Garg could not be made the basis for recording a finding that forms C were delivered to the assessee. Assuming for the sake of argument that forms C obtained by Sri Garg were handed over to the assessee, a further fact has to be established that the said forms were utilised by the assessee. From a perusal of the orders of the lower appellate courts it appears that none of the authorities have recorded a finding that the aforesaid ten forms C which are alleged to have been obtained by Sri Garg and handed over to the assessee were utilised by the assessee. In my opinion until and unless a finding is recorded that those forms C were utilised by the assessee, no liability can be fasterfed on it.
4. In the result the revision succeeds and is allowed. The order passed by the Tribunal is set aside and it is directed to decide the appeal in the light of the observations made above on the basis of the material available on record. However, there will be no order as to costs.
5. Let a copy of this order be sent to the Tribunal concerned as contemplated under Section 11(8) of the Act.