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S/Sri Balaji Int Udyog v. Commissioner, Trade Tax, U.P, Lucknow - SALES/TRADE TAX REVISION No. 221 of 2005 [2007] RD-AH 4449 (14 March 2007)


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Trade Tax Revision No. 221 of 2005.

S/Sri Balaji Int Udyog                                                      .............Applicant.


Commissioner, Trade Tax, U.P. Lucknow                     ........Respondents.


Hon'ble Anjani Kumar, J.

This trade tax revision under Section 11 of the U.P. Trade Tax Act (In short 'the Act')  raises the following questions of law :-

"(i) Whether on the facts and in the circumstances of the case, the Tribunal is legally justified in rejecting the books of accounts?

(ii) Whether on the facts and in the circumstances  of the case, the Tribunal is legally justified in estimating firing and production without any material on record?

(iii) Whether on the facts and in the circumstances of the case, the Tribunal is legally justified in the estimating the purchases of coal from unregistered dealers U/s 3 AAAA while no evidence was available on record regarding such purchases?"

The brief facts as alleged in this revision are that the applicant-revisionist runs the business of manufacture and sale of brick from the klin.  Applicant is registered dealer under the provisions of 'the Act', wherein during the year under consideration a survey was made on 21st February, 2000.  At the time of survey, the surveying authority found that the firing in brick klin was closed on 9th February, 2000 and only Pathai of bricks were going on.  The assessing officer has issued show cause notice to the revisionist to show cause which was replied to by the revisionist, but the same was not accepted by the assessing officer and he vide order dated 23rd March, 2002 rejected  the books of account assessing the total taxable turnover of Rs.8,10,000/= and on the basis of aforesaid estimate fixed tax at Rs.66,600/=.  

Aggrieved by the assessment order dated 23rd March, 2002, the revisionist preferred a appeal before the appellate authority i.e. Deputy Commissioner (Appeals), Trade Tax.  The appellate authority vide its


order dated 30th November, 2002 dismissed the appeal filed by the applicant and confirmed the assessment order.  Thereafter being aggrieved by the order dated 30th November, 2002, the applicant preferred second appeal before the Trade Tax Tribunal.  The Tribunal vide its order dated 24th July, 2004 allowed the second appeal of the applicant-assessee in part and reduced the tax to Rs.49,950/=.  It is this order which has been challenged by the assessee-applicant by means of present revision on the ground that the order passed by the Tribunal is patently illegal and erroneous.  Before the Tribunal, an affidavit of the assessee-applicant was filed to the effect that the bricks clean is closed and the assessing officer presuming 13 days production of bricks, assessed the tax on applicant.  It is further submitted by learned counsel for the applicant that the Tribunal did not consider that there was no material on record for arriving on the finding that the firing was on in the klin for 30 days, whereas the surveying officer itself has recorded that at the time of survey on 21st February, 2000 the firing was stopped 13 days ago.

I have heard learned counsel for the applicant-revisionist and the learned Standing Counsel.  Learned counsel for the revisionist in support of his contention relied upon the decisions of this Court reported in S.T.I. 1988 Allahabad High Court, 39 - M/s. Chawla Bricks Field, Lukerganj, Allahabad Vs. The Commissioner of Sales Tax, U.P., Lucknow, wherein in the similar set of facts this Court found, which runs as under :-

"As seen earlier, the only ground for not accepting the firing period was that no intimation to that effect had been sent.  The learned standing counsel appearing for he revenue, could not point out any provision or rule which required the assessee to such an intimation to the Assessing Officer.  In absence of any such legal obligation, the assessee's claim could not have been rejected on considerations which prevailed with those authorities."

This court in the aforementioned decision further found, which is as follows :-

"In view of the above authorities, the Sales Tax Tribunal erred in law when it confirmed the finding that the firing period shown by the assessee was liable to be ignored, and rejected since the assessee had


failed to inform the Department about the temporary closure of firing."

Learned counsel for the revisionist further relied upon the decision of this Court reported in 2000 U.P.T.C., 50 - M/s. Quraishi Brick Suppliers Vs. Commissioner of Sales Tax, wherein this Court has held as under :-

"Considering that the brick klin was found to be not operating on 5th February, 1982, there was no reason to increase the firing period unless there was some other material.  The firing period cannot be fixed on the basis of consumption of coal only unless all other relevant circumstances and material are considered.  In this view of the matter, the revision succeeds."

Learned counsel for the revisionist relying upon the aforesaid decisions of this Court submitted that there was absolutely no material on the basis of which the authorities have come to the conclusion that the brick klin was operative throughout 30 days, whereas the material on record was contrary that it was operated only for 13 days in the month in question.

In this view of the matter, this revision deserves to be allowed.  In the result, this revision succeeds and is allowed.  The order dated 24th July, 2004 (Annexure No. '6' ) passed by the Tribunal is set aside.  The matter is remanded back to the Trade Tax Tribunal with the direction to decide the same in the light of the observations made above and in accordance with law.




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