High Court of Judicature at Allahabad
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M/S Kashi Int Udyog Thru' Prop. Tirth Raj Dwivedi v. The Commissioner Of Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 113 of 2007  RD-AH 4051 (9 March 2007)
TRADE TAX REVISION NO.113 OF 2007
M/s Kashi Int Udyog, Handia, Allahabad. ....Applicant
The Commissioner of Trade Tax. .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 29.11.2006 relating to the assessment year 2002-03.
Applicant was engaged in the business of manufacture and sale of bricks. During the year under consideration applicant had disclosed the firing period in first season from 15.04.2002 to 10.06.2002 for 57 days and had not shown any firing in the second season. Applicant had also claimed to have used 4.10 lacs bricks for the construction of his own house, which has been disallowed by the assessing authority. Assessing authority had estimated the firing period in the first season from 15.04.2002 to 25.06.2002 for 70 days and in second season estimated the firing period from 01.03.2003 to 31.03.2003 for 31 days. First appeal field by the applicant was allowed in part. Being aggrieved by the order of the first appellate authority applicant filed second appeal before the Tribunal. Tribunal by the impugned order allowed the appeal in part. Tribunal has estimated the firing period in first season from 15.04.2002 to 15.06.2002 for 60 days and sustained the estimate of firing period from 01.03.2003 to 31.03.2003 in second season for 31 days. Tribunal has also allowed the claim of bricks used for the construction of own house at 1.40 lacs bricks.
Heard learned counsel for the parties.
Learned counsel for the applicant submitted that the Tribunal has sustained the enhancement of firing period by five days in first season without any basis. He submitted that there was no basis for the estimate of the firing period in the second season for 31 days. He further submitted that at the time of survey dated 18.02.2003 firing was not going on and the information for the non-operation of the kiln was given on 07.04.2003. Thus, in the absence of any material estimate of firing period in the second season is not justified. He submitted that in support of the claim of use of 4.10 lacs bricks in the construction of own house, certificate of Gram Pradhan was furnished, which has not been accepted and the benefit only to the extent of 1.50 lacs bricks was allowed, which is not justified.
Learned Standing Counsel submitted that at the time of survey dated 18.02.2003 pathai, bharai was going on; one truck coal was available; kiln was ready for the operation. Applicant had not given any information within the reasonable period for non-operation of the kiln in the second season. He submitted that the claim of the applicant that immediately after the survey on the next day, due to rain and thunderstorm, bricks inside and outside the kiln were destroyed, has not been accepted on the ground that such information had not been given by any other kiln owner and is not supported by any evidence. He further submitted that Gram Pradhan is not an expert to certify the use of 4.10 lacs bricks in the construction of the house. Applicant had not given any information during the year under consideration about the use of bricks in the construction of the house for necessary verification.
Having heard learned counsel for the parties, I have perused the order of the Tribunal and the authorities below.
The rejection of books of account and best judgment assessment is not in dispute. In my view, there appears to be no reason to enhance the firing period by five days in the first season. There is no material on record to dispute the closure of the firing from 10.06.2002. In the circumstances, firing period disclosed in the first season is liable to be accepted.
So far as second season is concerned, at the time of survey dated 18.02.2003 pathai, bharai etc. was going on. One truck coal was available in the stock. In this way, kiln was ready for the firing. The explanation of the dealer that immediately after the survey on the next day bricks inside and outside the bricks was destroyed due to rain and thunderstorm, can not be accepted because the information in this regard was not given within a reasonable period. The information was given on 07.04.2003, that is after 50 days from the survey. In view the fact found at the time of survey dated 18.02.2003 it can not be believed that the kiln could not be operated. Normally kiln operates from December to June and in case, if there is any closure in between, burden lies upon the assessee to prove its case. In the present case, applicant failed to prove that the kiln could not operate in the second season. In the circumstances, estimate of the firing period for 31 days can not be said to be arbitrary or without any basis.
So far as the claim of 4.10 lacs bricks used in the construction of own house, applicant had not furnished any reliable evidence. Gram Pradhan is not expert to certify the use of bricks in the construction. Applicant could not inform the assessing authority during the year under consideration about the construction of the house and the use of manufactured bricks in the construction of own house for the purpose of the verification. In this view of the matter disallowance of the partial claim can not be said to be unjustified.
In the result, revision is allowed in part and firing period for the first season is accepted. Tribunal is directed to re-determine the turn over of bricks and coal afresh.
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