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The Commissioner, Trade Tax, U.P. Lucknow v. S/S Modi Industries Ltd. - SALES/TRADE TAX REVISION No. 845 of 2000 [2007] RD-AH 2308 (12 February 2007)


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Court no. 22

Trade Tax Revision no. 845 of  2000.


Trade Tax Revision no. 846 of 2000.

Commissioner of Trade Tax, U. P. Lucknow.         ... Revisionist.


S/S Modi Industries Ltd., Ghaziabad. ... Opp. Party

Hon'ble Rajes Kumar, J.

These two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as the "Act") are directed against the order of Tribunal dated 23.08.2006 relating to the assessment years 1990-91 and 1991-92 respectively.

At the instance of the Revenue, the following common questions have been raised in both the revisions:-

1.Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to hold that old car and furniture were taxable under the category of old discarded and unserviceable items in the light of the decisions of the Hon'ble Supreme Court in the case of Rainbow Steels versus Commissioner, Sales Tax U. P. 1981 U.P.T.C. Page 400 ?

2.Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to exclude the amount of freight from the taxable turnover despite the price of the goods was fixed F. O. R. destination ?

3.Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to allow the exemption on the form submitted as additional evidence without giving opportunity of the department for rebuttal or verification ?

Heard learned Counsel for the parties.  

So far as the question no. 1 is concerned, the Tribunal held that the dealer had sold old and discarded furnitures, Electrical equipments , Tyre, Battery Car, Motor Cycle etc. and they were not useable.  Learned Standing Counsel is not able to show anything to the contrary.  Finding of the Tribunal is the finding of fact.  Question no. 1 is accordingly answered in favour of the assessee and against the Revenue.

So far as the question no. 2 is concerned, the First Appellate Authority recorded the finding that from the total amount of bill, amount of freight have been deducted and the freight have not been charged from the customers.   It appears that to make the commodity available at a uniform throughout the country, price F.O.R. Destination was stipulated in cases where the customers purchased commodity at the Factory, the freight was deducted.  In view of the fact that the amount of freight have not been charged from the customers, the question of its inclusion does not arise.  The First Appellate Authority has rightly held so, which has been confirmed by the Tribunal.  Thus, the question no. 2 is also decided in favour of the assessee.

So far as the question no. 3 is concerned, the perusal of order of the First Appellate Authority reveals that in respect of the Form, report was sought from the Assistant Commissioner (Assessment), Trade Tax, Modi Nagar.   On the receipt of the report dated 24.10.1997, in which, no defect in the Forms has been reported, the claim of concessional rate of tax against Forms 3-B and 3-D has been accepted. Therefore, it can not be said that the claim of concessional rate of tax was allowed against the Forms submitted before the First Appellate Authority without giving proper opportunity of hearing.  Thus, the question no. 3 is also decided in favour of the assessee.

For the reasons stated above, both the revisions are devoid of any merit and are, accordingly, dismissed.




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