1 Neutral Citation. - 2025:AHC-LKO:19534 Reserved: 07.03.2025 Pronounced: 08.04.2025 Court No. - 6 Case :- SALES/TRADE TAX REVISION No. - 62 of 2018 Revisionist :- S/S Ashoka Steel Lko.Throu Proprietor Ashok Kumar Trehan Opposite Party :- Commissioner Commercial Taxes U.P.Lucknow Counsel for Revisionist :- Vaibhav Pandey,Aditya Pandey Counsel for Opposite Party :- C.S.C. Hon'ble Pankaj Bhatia,J. 1. Present revision has been filed challenging the order of the Tribunal dated 19.06.2018. 2. Following questions of law emerge in the present case: “(1) Whether in the facts and circumstances of the case, the Commercial Tax Tribunal was legally justified in rejecting the account books of the applicant and in confirming the order passed by the assessing authority ? (2) Whether in the facts and circumstances of the case, the Commercial Tax Tribunal was legally justified in accepting the survey report which is inadmissible in the eyes of law in view of the law laid down by this Hon'ble Court in the case of M/s Girja Ispat Pvt. Ltd. Vs. Commissioner of Trade Tax U.P. Lucknow reported in 2013 VSTI (18)-B768 ? (3) Whether in the facts and circumstances of the case, the Commercial Tax Tribunal was legally justified in relying on the stock noted by surveying authority on estimate basis without actual weighment ignoring the law laid down by this Hon'ble Court in the case of M/s Girja Ispat Pvt. Ltd. Vs. Commissioner of Trade Tax U.P. Lucknow reported in 2013 VSTI (18)- B768 ?” 3. The facts, in brief, are that the revisionist is the proprietor firm which was registered under the U.P. Value Added Tax Act as well as under the Sales Tax Act and is engaged in the business of purchase and sale of iron scrap and iron steel. On 24.05.2010, a survey was carried out at the premises of the petitioner and based upon the said survey, the books of account were disbelieved and steps were taken 2 for assessment on the best judgment assessment basis. The Assessing Authority vide assessment order dated 03.01.2012 created demand of Rs.3,00,561/- against the petitioner. Aggrieved against the said assessment order, an appeal was preferred which was dismissed on 16.07.2013. Against the appellate order dated 16.07.2013, a second appeal was preferred before the Commercial Tax Tribunal which too was dismissed on 19.06.2018. 4. Submission of learned counsel for the revisionist is that the entire proceedings under the best judgment assessment were based upon the survey conducted, and the goods which were lying were calculated on the basis of eye estimation which is not the correct method of estimation. 5. Reliance is placed upon a judgment in the case of M/s Girja Ispat Pvt. Ltd. v. Commissioner of Trade Tax, U.P., Lucknow; VSTI 2013 (Vol. 18) B-768. 6. Perusal of the order impugned reveals that the books of account as produced by the petitioner at the time of survey were disbelieved on the basis of the survey carried out and the goods which were found based upon eye estimation. 7. Considering the fact that it is well settled that the calculation of goods cannot be done only on the basis of eye estimation as held in the case of M/s Girja Ispat Pvt. Ltd. (supra) and also in the case of Maa Mahamaya Alloys Private Limited vs. State of U.P. & Ors.; 2023 SCC OnLine All 2811, a judgment of this Court, the order impugned based upon eye estimation cannot be upheld, more so, when provision of Section 28(5) of U.P. Value Added Tax Act empowers passing of an order of assessment, which has to be based upon credible material as prescribed under Section 28(2)(ii). 8. In the present case, weighing all the goods merely on the basis of eye estimation cannot be termed as a credible material and cannot 3 be judged as foundation for passing the order under the best judgment assessment powers conferred upon the Assessing Authority. 9. Relying on the said judgments, as referred above, present revision is allowed. 10. Impugned order dated 19.06.2018 passed in Second Appeal No.22 of 2016 is quashed. 11. Question Nos.1, 2 & 3 are answered in favour of the assessee and against the revenue. Order Date :- 08.04.2025 [Pankaj Bhatia, J.] nishant Digitally signed by :- NISHANT MOHAN High Court of Judicature at Allahabad, Lucknow Bench