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M/S Jitendra Singh Int Bhattha v. Commisioner Of Trade Tax - SALES/TRADE TAX REVISION No. 202 of 2006 [2006] RD-AH 6441 (23 March 2006)


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M/s Jitendra Singh Int Bhattha.           .Applicant


Commissioner, Trade Tax U.P.   .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 31.08.2005 for the assessment year 1999-2000.

Applicant was carrying on the business of manufacture and sale of bricks. During the year under consideration, applicant had operated the kiln from 26.01.2000 to 01.02.2000, from 06.03.2000 to 16.03.2000 and from 24.03.2000 to 31.03.2000 for 26 days. Assessing authority rejected the disclosed firing period and had estimated the firing period at 66 days and estimated the production at 9,40,000 bricks on the basis of production of 1 lac bricks in 7 days and after giving the benefit  of breakage and the bricks given towards compensation,  turn over at Rs.6,30,500/- had been fixed. Assessing authority had not fixed any average selling rate. Applicant filed appeal before the Joint Commissioner (Appeals), Trade Tax Varanasi, which was allowed in part. First appellate authority estimated the firing period at 59 days and looking to the capacity of the kiln at 3 lac bricks, estimated the production, on the basis of the production of one lac bricks in 8 days at 7,40,000 bricks and after giving the benefit of the breakage and the bricks given towards the compensation and applying the average selling rate at Rs.850/- per thousand bricks, estimated the turn over at Rs.3,76,975/-. Against the order of the first appellate authority, applicant as well as Commissioner of Trade Tax filed appeals before the Tribunal. Tribunal decided both the appeals ex-parte without hearing to the applicant. Tribunal has rejected the appeal of the applicant and has allowed the appeal of the Commissioner of Trade Tax and restored the order of the assessing authority.

Heard learned counsel for the parties.

I have perused the order of Tribunal and the authorities below.

Learned counsel for the applicant submitted that first appellate authority has fixed the firing period after considering the contents of the survey reports dated 28.01.2000 and 14.03.2000 and estimated the production on the basis of the production of one lac bricks in 8 days keeping in view the capacity of the kiln. He submitted that though the estimate of turn over made by the first appellate authority was also excessive but in any view of the matter there was absolutely no justification for restoring the order of the assessing authority. He further submitted that the Tribunal has not at all adverted to the findings and the reasoning given by the first appellate authority while setting aside the order of the first appellate authority. Learned Standing Counsel relied upon the order of the Tribunal.

I find substance in the argument of learned counsel for the applicant. It is settled principle of law that the Tribunal being the last Court of fact,  while reversing the order of the first appellate authority should have adverted to the findings recorded by the first appellate authority and the reasons given in the order but the perusal of the order of the Tribunal shows that the findings and the reasons given by the first appellate authority have not at all been considered and referred to. Thus, order of the Tribunal is vitiated.

In the result, revision is allowed. Order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide both the appeal nos.66 of 2004 and 162 of 2004 for the assessment year 1999-2000 afresh.




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