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M/S MURTI BRICK FIELD versus THE COMMISSIONER OF TRADE TAX, U.P. LUCKNOW

High Court of Judicature at Allahabad

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M/S Murti Brick Field v. The Commissioner Of Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION DEFECTIVE No. 167 of 2005 [2006] RD-AH 794 (12 January 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.(167) OF 2005

M/s Murti Brick Field, Mathura.       ....Applicant

Versus

The 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 05.04.2005 relating to the assessment year 1993-94.

Applicant was partnership firm, consisting of Sri Vipin Chand and Sri Vijay Singh. Applicant was engaged in the business of manufacture and sale of bricks. Upto the period 30.09.1993, the kiln was under the compounding scheme. There is no dispute in this regard. The dispute relates to the subsequent period 01.10.1993 to 31.03.1994. Applicant claimed that for the aforesaid period kiln had not been operated and the information in this regard had been given to the assessing authority on 29.12.1993 vide receipt no.21623. Assessing authority initiated the assessment proceeding for the aforesaid period and it appears that notice had issued and served on Sri Vipin Chand, one of the partner. Before the assessing authority, Sri Vipin Chand appeared and contended that the kiln had not been operated. Show cause notice was issued, in which it was mentioned that there was a survey on 07.01.1994, in which one challan no.29 dated 07.01.1994 was found. At the time of survey pathai and bharai were going on  and it was told that the firing would start very soon. Stock of pakki bricks at 7,50,000 was also found. In the reply to the show cause notice it was stated that survey dated 07.01.1994 did not relates to the applicant's kiln and it related to the another kiln, M/s Sangam Brick Field. It had also been requested that the proprietor of M/s Sangam Brick Field, Sri Vijay Singh may be called upon for necessary enquiry. The copy of the survey report had also been sought. Assessing authority relying upon the survey dated 07.01.1994 concluded that the kiln was operated and accordingly, production  and the turn over was estimated. Order of the assessing authority has been upheld in first appeal and by the Tribunal in second appeal.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that the survey dated 07.01.1994 did not relates to the applicant kiln. He submitted that before the assessing authority it was contended that the survey relates to M/s Sangam Brick Filed and the proprietor of M/s Sangam Brick Filed, Sri Vijay Singh may be called upon for necessary enquiry but the assessing authority did not made any enquiry from Sri Vijay Singh. It is also contended that in the survey report dated 07.01.1994 the name of person present mentioned is one Sri Prakash, Chaukidar. There is no signature of Sri Prakash, Chaukidar. He submitted that there was no man in the name of Sri Prakash, Chaukidar in the applicant kiln in as much as kiln had been closed. Assessing authority had not given opportunity to cross-examine Sri Prakash, Chaukidar. He submitted that in the absence of the signature of Sri Prakash in the survey report, said survey report can not be relied upon against the applicant. He further submitted that in any view of the matter survey report only suggests that pathai and bharai were going on but there is no material that any production had also been done in the kiln. He further referred the assessment order for the assessment year 1994-95 which is filed as annexure no.4 to the present revision, passed in the name of the applicant in which it was mentioned that the information about the closure of the business had been given on 29.12.1993. Assessing authority mentioned that on enquiry, it was found that the kiln was situated 6 kms. from Kosi Kalan, Mathura Road. Sri Vijay Singh, proprietor of M/s Sangam Brick Field was present and it was stated that the kiln in the name of M/s Murti Brick Field was not operated and  in place of kiln now tree of babool and neem etc. are standing  and the land belonging to the kiln is now in the share/possession of Sri Vijay Singh, which he had subsequently sold to someone else. He submitted that the above facts mentioned in the assessment order for the assessment year 1994-95 also shows that after the closure of the business on 01.10.1993, the land of the kiln came in the share/possession of Sri Vijay Singh, who was running the kiln in the name of M/s Sangam Brick Field and, thus, for the period subsequent to 01.10.1993 it was necessary to make the enquiry from Sri Vijay Singh.

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

Learned Standing Counsel has also produced the assessment record and the survey report dated 07.01.1994. Perusal of the survey report dated 07.01.1994 shows that the name of Sri Prakash, Chaukidar is mentioned in front of column person present. There is no signature of Sri Prakash, Chaukidar in the survey report dated 07.01.1994.  In the absence of the signature of Sri Prakash, Chaukidar in the survey report, the survey report becomes doubtful and need a deep investigation. Before relying upon the said survey report against the applicant particularly when it was claimed that the business had been closed after 01.10.1993 and the necessary information in this regard was given on 29.12.1993. If the person present at the time of survey dated 07.01.1994 could not sign the survey report, the surveying officer should have immediately issued the notice to the applicant confronting the facts mentioned in the survey report and necessary enquiry be made in this regard but it appears that no such notice was issued and no enquiry was made. Assessment order for the assessment year 1994-95 also reveals that on further enquiry made by the assessing authority at the kiln premises Sri Vijay Singh was present and he told that the land of the kiln came to his share/possession. In this view of the matter when another partner, Sri Vipin Chand contended in reply to the show cause notice that the survey did not relates to its  kiln and relates to M/s Sangam Brick Field and requested for enquiry from Sri Vijay Singh, Proprietor of M/s Sangam Brick Field, the necessary enquiry should be made from Sri Vijay Singh.  In this view of the matter in my opinion, matter requires enquiry and investigation which can appropriately be done by the assessing authority. In the circumstances, matter is remanded back to the assessing authority to pass assessment order afresh after making the necessary enquiry.

In the result, revision is allowed. Order of the Tribunal and the first appellate authority are set aside and the matter is remanded back to the assessing authority to pass assessment order afresh after making the necessary enquiry. Applicant is directed to produce the copy of this order before the assessing authority within three weeks. Assessing authority is directed to pass assessment order expeditiously in accordance to law.

Dt.12.01.2006

R./


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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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