JUDGMENT
R.K. Agrawal, J.
1. The assessee-applicant has filed the present revision under Section 11 of the U.P. Sales Tax Act (now U.P. Trade Tax Act) (hereinafter referred to as “the Act”) against the order dated June 26, 2000 passed by the Sales Tax Tribunal, Bench 3, Varanasi in Second Appeal No. 96 of 1989 (1984-85).
2. The facts giving rise to the present revision are that the assessee is the registered dealer and is engaged in the business of sales of coal. During the assessment year 1984-85, it was allotted 12,859 metric tons of coal by the collieries. Before the Sales Tax Officer, the applicant submitted that during the year in question, it had not imported any coal within the State of U.P. However, the assessing authority disbelieved the version of the applicant and assessed the turnover by the best judgment assessment at Rs. 90,56,300 and imposed a sum of Rs. 3,62,252 as tax. The appeal filed by the applicant before the Assistant Commissioner (Judicial) was partly allowed vide order dated January 6, 1989. The Assistant Commissioner (Judicial) reduced the turnover of coal at Rs. 12,25,500. Feeling aggrieved by the said order the applicant as well as the Commissioner of Sales Tax, U.P., Lucknow, filed second appeals before the Tribunal. The Tribunal vide order dated June 26, 1990 had partly allowed the appeal of the applicant and had reduced the turnover of coal to Rs. 11,40,000 whereas it had dismissed the appeal filed by the Commissioner of Sales Tax. The order dated June 26, 1990 in so far as it had fixed the turnover to Rs. 11,40,000 is only under challenge in the present revision.
3. I have heard Shri Alok Kumar, learned counsel for the applicant and Shri B.K. Pandey, learned Standing Counsel for the respondent.
4. The learned counsel for the applicant submits that during the assessment year in question, even though the applicant was allotted 12,859 metric tons of coal, the applicant had not imported any quantity of coal inside the State of U.P. and thus, there was no liability for payment of tax in U.P. He further submitted that the applicant had filed certificate from the colliery to the effect that it had not lifted 10,009 metric tons of coal and remaining quantity of coal was not imported in the State of U.P. He further submitted that the burden of proving that the applicant had imported coal within the State of U.P. was upon the Sales Tax Department and there being no material on record to show that any coal has been imported by the applicant within the State of U.P., the fixation of turnover at Rs. 11,40,000 is wholly arbitrary and uncalled for.
5. On careful examination of the submissions of the learned counsel for the applicant, I find that the learned counsel for the applicant is not correct in submitting that the burden of proving that the applicant had imported coal within the State of U.P. lies upon the Sales Tax Department. Specific provision in that regard has been made in the Act under Section 12-A of the Act which provides that in any assessment proceedings, when any fact is specially within the knowledge of the assessee, the burden of proving that fact shall lie upon him. The applicant had not placed any material on record to show that he had discharged the burden as envisaged under Section 12-A of the Act, The applicant had filed certificate of the colliery to the effect that it had not lifted 10,009 metric tons of coal within the allotted 12,859 metric tons of coal. It was the duty of the applicant to place material before the authorities to show that the remaining 2,850 metric tons of coal had not been brought into the State of U.P. and had been sold elsewhere. Thus, in the absence of any material having been produced by the applicant before the authority it is established that the applicant had failed to discharge the burden which was upon it under Section 12-A of the Act. Thus, there is no infirmity in the order of the authorities concerned including Tribunal in holding that the applicant had imported remaining quantity of coal within the State of U.P.
6. The learned counsel for the applicant further submitted that the rate of Rs. 400 per ton as fixed by the Tribunal is wholly arbitrary.
7. It may be mentioned here that the applicant had not maintained any books of accounts. The applicant had not produced any books of account before the assessing authority. No proof of selling rate has been given by the applicant. In these circumstances, the Tribunal had not committed any error of law in the fixing the turnover as mentioned above.
8. The revision lacks merit and is dismissed.