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Sarsri Tirsu Rajbhar v. Commissioner, Trade Tax U.P., Varanasi - SALES/TRADE TAX REVISION DEFECTIVE No. 190 of 2006  RD-AH 6179 (21 March 2006)
TRADE TAX REVISION NO.(190) of 2006.
Sarvsri Tersu Rajbhar, Bricks Kiln Malethi, Ghazipur. Applicant
The 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 28th September, 2005 relating to the assessment year 1991-92.
The applicant was engaged in the business of manufacture and sale of bricks. Rejection of books of account is not in dispute. During the year under consideration, applicant had operated kiln in the first season from 1.4.1991 to 16.4.1991 and in the second season from 7.3.1992 to 25.3.1992. Assessing authority rejected the firing period and estimated in the first season for 24 days and in the second season for 40 days, in all 64 days. The claim of the applicant for giving the bricks in lieuof the rent has also been allowed in part. Assessing authority has enhanced the firing period on the basis of the surveys dated 13.4.1991 and 21.3.1992. Applicant filed appeal before the Deputy Commissioner (Appeals). Deputy Commissioner (Appeals) allowed the appeal and held that during the survey no material has been found to reject the disclosed firing period. Claim of the applicant for giving the bricks on compensation has also been allowed. First appellate authority held that the total turnover is below the taxable limit and the applicant is not liable to tax. Commissioner of Trade Tax filed appeal before the Tribunal. Tribunal by the impugned order allowed the appeal in part. Tribunal has restored the estimate of the firing period at 64 days and taking the average selling rate at Rs. 480/- estimated the turnover at Rs.2,36,400/-.
Heard learned counsel for the parties.
With the consent of both the parties, present revision is being disposed of at the admission stage.
Learned counsel for the applicant submitted that the Tribunal is the last Court of fact and while reversing the order of the first appellate authority should have adverted to the findings recorded by the first appellate authority while in the present case, Tribunal has not considered the findings recorded by the first appellate authority. He submitted that without any basis, firing period estimated at 64 days has been restored. He submitted that the assessing authority has allowed the claim of compensation in part while Tribunal has not allowed any benefit. He also submitted that the estimate of the average selling rate at Rs.480/- is also excessive. Learned Standing Counsel relied upon the order of the Tribunal.
Having heard the learned counsel for the parties, I have perused the order of the Tribunal and the authorities below.
In my opinion, the order of the Tribunal is not sustainable. It is settled principle of law that while reversing the order of the first appellate authority, Tribunal should have adverted to the findings recorded by the first appellate authority. First appellate authority held that there is nothing in the surveys dated 13.4.1991 and 21.3.1992 to reject the firing period. Tribunal while restoring the firing period at 64 days should have considered the material found at the time of survey and should record its own finding about the estimate of the firing period, but the Tribunal has not done so. Tribunal should not have allowed the claim of compenation, which is allowed by the assessing authority. In this view of the matter, order of the Tribunal is vitiated and the matter requires reconsideration.
In the result, revision is allowed in part. Order of the Tribunal relating to the assessment year 1991-92 is set aside and the Tribunal is directed to decide the appeal no.106 of 1997 for the assessment year 1991-92 afresh in the light of the observations made above.
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