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M/S ENT EVAM KUTIR UDYOG SANCHALAK SAMITI versus THE COMMISSIONER, TRADE TAX, U.P. LUCKNOW.

High Court of Judicature at Allahabad

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M/S Ent Evam Kutir Udyog Sanchalak Samiti v. The Commissioner, Trade Tax, U.P. Lucknow. - SALES/TRADE TAX REVISION No. 1706 of 2006 [2007] RD-AH 206 (4 January 2007)

 

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.22

TRADE TAX REVISION NO.1706 of 2006.

AND

TRADE TAX REVISION NO.1707 of 2006.

AND

TRADE TAX REVISION NO.1708 of 2006.

AND

TRADE TAX REVISION NO.1709 of 2006.

AND

TRADE TAX REVISION NO.1710 of 2006.

AND

TRADE TAX REVISION NO.1711 of 2006.

M/S Ent Evam Kutir Udyog Sanchalak Samiti, Hapur, Ballia.  Applicant

Versus

The Commissioner, Trade Tax, U.P., Lucknow.                          Opp.Party.

Hon'ble Rajes Kumar, J.

Present six revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 30th  June, 2006 relating to the assessment year, 1990-91, 1991-92, 1992-93, 1993-94 and 1994-95.

Applicant was registered dealer under the U.P. Trade Tax Act and was carrying on the business of coal. It is claimed that the applicant was Society and has sold the imported coal to its members, who were mainly running the brick kiln. Coal were sold on principal to principal basis.  It is not the case that the applicant had acted as purchasing commission agent on behalf of  its members and had purchased the coal on their behalf. Coal were purchased on its own account and were sold to its members on principal to principal basis. Admittedly, the books of account have not been maintained properly. Freight, which were incurred in bringing the coal from colliery to the destination claimed to have been separately charged from the customer and, therefore it was claimed that it would not be a part of the turnover. The assessing authority in the absence of the proper books of account estimated the turnover by way of best judgment assessment. Assessing authority has also rejected the claim with regard to the freight. Assessing authority held that the freight, which was incurred for transporting the goods from colliery to destination, was before sale and was part of the purchase price and therefore, was the part of the turnover. Being aggrieved by the order of the assessing authority, applicant filed appeal before the Deputy Commissioner (Appeal), Trade Tax, Varanasi. Deputy Commissioner (Appeal), Trade Tax, Varanasi allowed the appeals in part and held that since the freight were charged separately, it would not be a part of the turnover. Being aggrieved by the order of the Deputy Commissioner (Appeal), Trade Tax, Varanasi, applicant as well as Commissioner of Trade Tax filed appeals before the Tribunal. Tribunal by the impugned order allowed the appeals of the Commissioner of Trade Tax and dismissed the appeals of the applicant. Tribunal held that the freight incurred by the applicant was before the sale for transporting the coal from colliery to the destination. Tribunal further held that the sales were made on principal to principal basis and was not the case of the applicant that it had purchased the coal on behalf of the principal. Tribunal held that freight would be a part of the turnover, relying upon the decision of this Court in the case of Commissioner of Trade Tax Versus S/S Sharma Coal Co., Azamgarh reported in 2005 UPTC 1165.

On the best judgment assessment Tribunal, held that for the assessment year, 1991-92, the applicant had imported coal to the extent of 3468.23 MT the value of which was estimated at Rs.20,50,000/- including freight. The average selling rate comes to Rs.591.07 per MT. Tribunal held that in various case the selling rate between Rs.900/--1000/- has been estimated by the Tribunal and therefore, the estimate of the turnover on the basis of average selling rate at Rs.591.07, was held justified.

For the assessment year, 1994-95, Tribunal held that the applicant has imported coal to the extent of 7136.22 MT and the value was estimated at Rs.55,70,000/- including freight. The average selling rate comes to Rs. 780.52 per MT. Tribunal held that in various cases the average selling rate has been fixed between Rs.1250-1350, therefore, Tribunal justified the estimate of the turnover by the assessing authority.

For the assessment year, 1997-98, Tribunal held that the applicant has imported coal to the extent of 3614.50 MT and the value was estimated at Rs.44,00,000/- including freight. The average selling rate comes to Rs.1217.31 per MT. The average selling rate fixed by the Tribunal in other cases was between Rs.1450-1500, therefore, the estimate of the turnover has been held justified.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that the Tribunal has erred in holding that the freight would be a part of the turnover. He submitted that applicant has charged the freight separately and, therefore, it would not be a part of the turnover in view of Explanation to Section 2 (i) of the Act, which defines "turnover". He further submitted that the estimate of the turnover is arbitrary.

Learned Standing Counsel submitted that the issue relating to the inward freight has been finally decided by this court in the case of Commissioner of Trade Tax Versus S/S Ramapati Tewari reported in 2005 UPTC 76 and in the case of Commissioner of Trade Tax Versus M/S Sunit Kumar Coal Agent, Gorakhpur reported in 2003 UPTC 1036 and Trade Tax Revision No. 867 of 2006, M/S Avon Elastomers (India), Agra Versus Commissioner of Trade Tax decided on 06.11.2006 in which inward freight has been held as part of the turnover. He submitted that the estimate of the turnover is reasonable rather on the lower side even in accordance to the material on record, therefore, no interference is called for.

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

This Court in the case of Commissioner of Trade Tax Versus S/S Ramapati Tewari reported in 2005 UPTC 76 and in the case of Commissioner of Trade Tax Versus M/S Sunit Kumar Coal Agent, Gorakhpur reported in 2003 UPTC 1036 and Trade Tax Revision No. 867 of 2006, M/S Avon Elastomers (India), Agra Versus Commissioner of Trade Tax decided on 06.11.2006 held that inward freight is part of the turnover. Therefore, the view of the Tribunal in this regard cannot be said to be erroneous.

So far as estimate of turnover is concerned, Tribunal has given sufficient reason justifying the estimate of the turnover, which also does not require any interference. Question of estimate is a question of fact.

In the result, all the six revisions fail and are, accordingly, dismissed.

Dated.4.01.2007.

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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