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Awadhesh Kumar Yadav v. Commissioner, Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 125 of 2006 [2006] RD-AH 4665 (28 February 2006)


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Awadhesh Kumar Yadav.                       ....Applicant


Commissioner, Trade Tax, U.P., Lucknow. ...Opp. Party


Hon'ble Rajes Kumar, J.

Present revision under section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act")  is directed against the order of Tribunal dated 10.11.2005 for the assessment year 1990-91.

Applicant was involved in the business of manufacture and sale of bricks.  During the year under consideration, applicant had claimed to have operated the kiln from 20.04.1990 to 30.04.1990. It is claimed that the information for the start of the firing from 20.04.1990 was given on 26.04.1990. Applicant claimed that the kiln was not operated in the second season.  Admittedly, applicant had not maintained proper books of account and by way of best judgment assessment, assessing authority estimated the turn over. First appeal filed by the applicant was allowed in part. First appellate authority has estimated the firing period at 91 days in both the seasons and estimated the production at 7,60,000 bricks  and after giving the benefit of the bricks used for personal purpose and bricks given against the clay and deducting the quantity of the bricks in stocks, estimated the bricks sold at 4,86,000 bricks. First appellate authority has estimated the turn over of bricks at 1,85,000 bricks. Applicant filed appeal before the Tribunal. Tribunal rejected the appeal and upheld the order of the first appellate authority.

Heard learned counsel for the parties and with the consent of the parties, present revision is being disposed of at the admission stage itself.

Learned counsel for the applicant submitted that estimate of the turn over is arbitrary and excessive. He submitted that the information with regard to the starting of the firing from 20.04.1990 was given on 26.04.1990 and the closure of the firing from 03.05.1990 is established by the survey dated 17.07.1990. Thus, the estimate of the firing period for 31 days in first season is unjustified. He submitted that the estimate of the firing period for the second season is also unjustified. He further submitted that the first appellate authority as well as the Tribunal have not allowed the breakage allowance which is normally allowed @ 5%. Learned Standing relied upon the order of the Tribunal.

Having heard learned counsel for the parties, I have perused the order of the Tribunal and the authorities below.

I do not find any error in the order of Tribunal and the first appellate authority in estimating the firing period and the production. At the time of survey dated 17.07.1990 kiln was found filled with pakki bricks in two portions of the kiln, which falsified the firing period, disclosed by the applicant. Further in the second season, applicant claimed that the kiln was not operated while at the time of survey dated 14.02.1991 kiln was found in operation. Thus, the estimate of the firing period can not be said to be without any basis. However, I find some substance in the argument that the breakage allowance which has been allowed by the assessing authority has not been allowed by the first appellate authority and by the Tribunal. Normally such breakage allowance is allowed @ 5%. Tribunal is directed to allow the breakage allowance @ 5% and estimate the turn over accordingly.

In the result, revision is allowed in part. Order of the Tribunal is set aside. Tribunal is directed to re-calculate the turn over after allowing the breakage allowance @ 5%.




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