R.M. Sahai, J.
1. In this revision filed by the Commissioner of Sales Tax an issue of some importance in respect of rejection of account books for non-issuance of cash memo for petty sales arises for consideration.
2. The assessee carried on the business of cement, oil, mobile oil, etc., in the assessment year 1973-74. Its premises were surveyed on 25th May, 30th July and 9th September, 1973. No adverse material was found. But its account book was rejected because of higher consumption of electricity and failure to issue cash memos in respect of sales of Rs. 94,000 out of gross sales of Rs. 15,23,892.38. In appeal the explanation of the assessee of higher consumption of electricity due to wear and tear of machinery which was thirty years old was accepted. It was also held that in the earlier year even higher consumption than that shown in the year in dispute was accepted. The appellate authority further did not find any reason to reject the account books for failure to issue cash memo for petty sales specially when no adverse material was found in survey. The order was affirmed in second appeal by the Tribunal.
3. It has been argued by the learned standing counsel that non-issuance of cash memos by itself furnishes material for rejection of account books. Reliance has been placed on Nemi Chand v. Commissioner of Sales Tax 1981 UPTC 96, Ram Sunder Vijai Kumar v. Commissioner of Sales Tax 1981 UPTC 279 and Babu Lal Mahadeo Prasad, Chowk, Allahabad v. Commissioner of Sales Tax 1981 UPTC 31. In the last decision another decision of this Court which had taken a contrary view was noticed. The necessity however to refer the case to larger Bench is saved as none of these decisions noticed a Division Bench decision in Ramji Lal v. Commissioner of Sales Tax 1978 1978 UPTC 544 in which it was held that no adverse inference could be drawn against an assessee maintaining consolidated cash memos in respect of retail sales at the end of the day. The learned standing counsel attempted to distinguish the decision and argued that in that case at least the assessee did issue a consolidated cash memo at the end of the day. This, however, does not make any difference in law. The issuance of a consolidated cash memo in the evening or recording the consolidated sale in the account books ultimately results in the same thing, that is, no cash memo was issued at the time of sale of goods. If the issue of consolidated cash memos in the evening does not furnish material for rejection of the account books then recording of consolidated petty sales at the end of the day also cannot furnish material for rejection of the account books.
4. Section 8-A(4) mandates a dealer to issue cash memo or bill, without prejudice to the provision of Section 12. That is, irrespective of the provisions for maintenance of account books such as a stock register, manufacturing register, the assessee also is required to issue cash memo. But an exception has been made in respect of sales below Rs. 5 and for small dealers, that is, whose turnover does not exceed Rs. 48,000. The legislature, therefore, itself took notice of petty sales. Apart from it how hazardous it would be to hold that an assessee whose sale and purchase is otherwise verifiable has to undergo the ordeal of rejection of account books for breach of this provision contravention of which has been made penal. Probably it was for this reason that the legislature did not add it as Sub-section of Section 12. An assessee failing to issue cash memo does so at his peril. He exposes himself to harsh penalty provided under Section 15-A. But if an assessee maintains true and correct account showing the value of goods bought and sold as required under Section 12 its account books cannot be rejected. For instance the entries in the account books showing opening stock of the day, receipts and sale in the course of the day and the closing stock may not show any discrepancy. Can the account books be rejected If so under which provision because the assessee having maintained true and correct account showing value of the goods bought and sold has complied with law. Whether he has issued cash memo or not is not relevant in a case where the account books are otherwise verifiable. It may be explained by an illustration. The opening stock of a ready-made garment dealer shows 20 bush shirts, 20 pants, 20 socks, etc. He receives goods for sale, say, 10 in each item. The total, therefore, becomes thirty. He has sold each item in the course of the day. The closing stock shows remaining 15 in each. All this is shown in the account book. No cash memo is issued. Can the maintenance of account book be said to be defective. The answer has to be in the negative. According to the learned standing counsel it would frustrate the entire objective if it is held that non-issuance of cash memo does not result in rejection of account books. The apprehension is baseless. It is a statutory requirement. Its breach has been made penal. Its maintenance is in the interest of a dealer. It assists in verifiability of the account book. But failure to issue it cannot by itself furnish ground for rejection of account books where the account books are otherwise verifiable.
5. In the result the revision fails and is dismissed with costs which is assessed at Rs. 200.