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M/S JITENDRA ISNGH INT BHATTHA versus COMMISSIONER OF TRADE TAX

High Court of Judicature at Allahabad

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M/S Jitendra Isngh Int Bhattha v. Commissioner Of Trade Tax - SALES/TRADE TAX REVISION No. 214 of 2006 [2006] RD-AH 6860 (29 March 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.25

TRADE TAX REVISION NO.214 of 2006.

M/S Jitendra Singh Int Bhatta, Ghazipur.           Applicant

Versus

Commissioner of 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 31st August, 2005 relating to the assessment year 2000-2001.

The applicant was engaged in the business of manufacture and sale of bricks. During the year under consideration, applicant had operated kiln in the first season for 11 days and in the second season for 17 days in all 28 days and had disclosed the production at 2, 74,500 bricks. The applicant had also claimed to have given 80,000 bricks in lieu of rent, 55,000 plus 15,000 towards donation and 1,38,000 bricks for personal use. Assessing authority rejected the books of account and estimated the production of bricks at three rounds consisting of one round in first season and two rounds in second season and estimated the production of 12 lacs bricks and after allowing the benefit of the closing stock bricks given in lieu of rent, donation and for personal use, estimated the bricks sold at 9,09,500 bricks and turnover at Rs.9.09,500/-. Applicant filed appeal before the Joint Commissioner (Appeal), Trade Tax, Varanasi. Joint Commissioner (Appeal), Trade Tax, Varanasi vide order dated 19th February, 2005 allowed the appeal in part. First appellate authority held the capacity of the kiln at 3.5 lacs bricks and operation of the kiln little more than 2 ½ rounds consisting of one round in first season and little more than 1 ½ rounds in second season and estimated the production at 9 lacs bricks and on the basis of the order of the Tribunal in the case of S/S Raj. Ent. Bhatta, Utrauli Versus Commissioner of Trade Tax estimated average selling rate at Rs.950/-per thousand bricks. Against the order of the Joint Commissioner (Appeal), Trade Tax, Varanasi, applicant as well as Commissioner of Trade Tax filed appeals before the Tribunal. Tribunal by the impugned order rejected the appeal of the applicant and allowed the appeal of the Commissioner of Trade Tax and restored the order of the first appellate authority.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that the first appellate authority on consideration of the three surveys made in the second season, namely, 10th January, 2001, 21st February, 2001 and 26th March, 2001 estimated the operation of the kiln in the second season little more than 1 ½ rounds and on the basis of the decision of the Tribunal fixed the average selling rate at Rs. 950/- per thousand bricks and looking to the number of the pava, the capacity of kiln at 3.5 lacs bricks. He submitted that the Tribunal while reversing the order of the first appellate authority has not adverted to the findings and the reasons recorded by the first appellate authority and has restored the order of the assessing authority. Learned Standing Counsel relied upon the order of the Tribunal.

I find substance in the argument of the learned counsel for the applicant. It is settled principle of law that while reversing the order of the appellate authority, Tribunal ought to have adverted to the findings and the reasons given by the first appellate authority. Perusal of the order of the Tribunal shows that the findings and the reasons recorded by the first appellate authority have not been adverted to. Thus, the order of the Tribunal is erroneous.

I have perused the order of the first appellate authority. I do not find any reason to interfere with the order of the first appellate authority. First appellate authority has considered that at the time of survey dated 10th January, 2001, firing was started from 5th January, 2001and at the time of survey dated 26th March, 2001, firing was found closed and it was found that the firing had been closed much earlier. Having regard to the fact found at the time of surveys dated 10th January, 2001, 21st February, 2001 and 26th March, 2001, first appellate authority estimated the operation in the second season little more than 1 ½ rounds, keeping in view 19 pavas in the kiln, estimated the capacity of kiln at 3.5 lacs. Perusal of the assessment order shows that the capacity has not been determined. Tribunal has also not pointed out that the capacity estimated at 3.5 lacs keeping in view of 19 pavas is not justified. First appellate authority estimated the average selling rate at Rs.950/- per thousand bricks on the basis of the order of the Tribunal in the case of S/S Raj. Ent. Bhatta, Utrauli Versus Commissioner of Trade Tax in appeal no. 177 of 2003, to the contrary, no material has been placed. In this view of the matter, order of the first appellate authority is upheld.

In the result, revision is allowed in part. Order of the Tribunal is set aside and the order of the first appellate authority is restored.

Dated.29.03.2006.

VS.


Copyright

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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