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COMMISSIONER, TRADE TAX, UP LKO. versus S/S KANAHA VANASPATI LTD.

High Court of Judicature at Allahabad

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Commissioner, Trade Tax, Up Lko. v. S/S Kanaha Vanaspati Ltd. - SALES/TRADE TAX REVISION No. 645 of 1999 [2006] RD-AH 4680 (28 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 55

Trade Tax Revision no.  645 Of  1999.

The Commissioner of Trade Tax, U. P. Lucknow. ...Applicant.

Vs

S/S Kanaha Vanaspati Ltd., Budaun. ... Opp. Party.

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U. P. Trade Tax Act (hereinafter referred to as ''the Act') is directed against the order of Tribunal dated 30.03.1999 relating to assessment year 1991-92 under the U. P. Trade Tax Act.

During the assessment proceedings, Dealer/Opposite Party (hereinafter referred to as "the Dealer") had disclosed purchases of Rice-husk at Rs.20,88,784.80 and had also admitted liability of tax on its purchases.  The Assessing Authority levied tax on the purchases of Rice-husk.  Before the First Appellate Authority, dealer submitted that it had purchased Paddy-husk, which was used in Boiler as a fuel and was not liable to tax.  The First Appellate Authority rejected the claim of the dealer and held that the dealer in Form-4 which is a return contemplated under rule 41 had disclosed the purchases of Rice-husk and had admitted liability of tax and also deposited the tax on it.  It has also been held that before the Assessing Authority, no dispute was raised with regard to the purchases of Rice-husk and liability of tax on it.  The First Appellate Authority accordingly up held the levy of tax on the purchases of Rice-husk.  Dealer filed appeal before the Tribunal.  Before the Tribunal, dealer again submitted that it purchased Paddy-husk for use in boiler as a fuel and since the Rice-husk and Paddy-husk are the two different commodities, turnover was not liable to tax.  The Tribunal allowed the appeal and deleted the tax on the purchases of Rice-husk treating it as a purchases of  Paddy-husk.

Heard learned Counsel for the parties.

Learned Standing Counsel submitted that before the Assessing Authority, dealer itself disclosed the turnover of Rice-husk at Rs.20,84,780/- and had admitted the liability of tax on such purchases. He submitted that in the return Form 4, turnover of Rice-husk was disclosed and liability of tax was admitted and at no stage, the liability of tax at Rs.20,88,780/-, had been disputed.  He submitted that for the first time, dealer had raised the plea before the First Appellate Authority that it had purchased Paddy-husk which had been rejected by the First Appellate Authority on the ground that the dealer had itself admitted the purchases of Rice-husk and admitted the liability of tax.  He submitted that the Tribunal has illegally observed that undisputedly, dealer purchased Paddy-husk for use in boiler as a fuel and since Paddy-husk and Rice-husk are two different commodities, tax on the amount of Rs.20,88,780/- had been deleted.  Learned Counsel for the dealer submitted that before the First Appellate Authority, dealer had claimed that it had purchased Paddy-husk and not Rice-husk and the Tribunal has rightly accepted the plea of the dealer and deleted the tax.

Having heard learned Counsel for the parties and perused the order of the Tribunal and the authorities below.

In my opinion, order of the Tribunal is patently illegal and against all the judicial norms.  It appears that the view of the Tribunal is based on non-judicial consideration.  The Tribunal has illegally observed that undisputedly, dealer had purchased Paddy-husk, which had been used in boiler as a fuel and deleted the tax on the ground that Paddy-husk and Rice-husk are two different commodities.  The Tribunal has not at all adverted to the findings recorded by the First Appellate Authority and has not looked into the assessment order where the findings were categorically recorded that the dealer itself had disclosed the purchases of Rice-husk for Rs.20,88,784.80 and admitted the liability of tax on it.  The First Appellate Authority has held that in the return Form-4, dealer had disclosed purchases of Rice-husk and admitted the liability of tax and before the Assessing Authority, there was no dispute in this regard.  The observations of the Tribunal on the facts and circumstances, is patently erroneous and contrary to the material on record and against all the judicial norms.  The Tribunal has acted in an irresponsible manner and it appears to have decided the case with ulterior motive.  In the circumstances, order of the Tribunal is set aside.

In the result, revision is allowed.  Order of the Tribunal is set aside and the order of the authorities below are restored.

Dt:28.02.2006.

MZ/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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