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S/S DHARAM DEO YADAV INT BHATTHA versus COMMISSIOENR OF TRADE TAX

High Court of Judicature at Allahabad

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S/S Dharam Deo Yadav Int Bhattha v. Commissioenr Of Trade Tax - SALES/TRADE TAX REVISION No. 117 of 2007 [2007] RD-AH 4575 (15 March 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.22

TRADE TAX REVISION NO.117 OF 2007

S/S Dharm Deo Yadav Int Bhattha.     ....Applicant

Versus

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 20.07.2006 relating to the assessment year 1996-97.

Applicant was carrying on the business of manufacture and sales of bricks.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that the capacity of the kiln was less than three lac bricks, in which production of one lac bricks takes place in ten days. He submitted that the first appellate authority after accepting the capacity of the kiln and relying upon the decision of the Tribunal in Second Appeal no.286/86, dated 30.11.1988 estimated the production on the basis of the production of one lac bricks in ten days. Therefore, Tribunal is not justified in estimating the turn over on the basis of the production of one lac bricks in eight days. He submitted that the findings recorded by the first appellate authority in this regard has not been considered by the Tribunal at all. He further submitted that the applicant had claimed the deduction of one lack bricks used for personal purposes and one lac bricks given to Madhuban Bal Gopal Inter College  on donation. In respect of which the certificate of Gram Pradhan and the certificate of Principal, Madhuban Bal Gopal Inter College were filed. He submitted that on the basis of the aforesaid two certificates, the benefit has been allowed by the first appellate authority, which has been illegally denied by the Tribunal. Copies of the certificates have been filed along with supplementary affidavit as annexure SA-1 and SA-2.

Learned Standing Counsel submitted that the Tribunal has estimated the production on the basis of the production of one lac bricks in eight days, which is finding of fact and no interference is called for. He further submitted that Gram Pradhan is not expert to give the certificate for the use of bricks for personal purpose. He submitted that the certificate given by Sri Gopi Singh Yadav, Principal Madhuban Bal Gopal Inter College, which is annexure SA-2 to the supplementary affidavit, does not say that the bricks of the applicant kiln has been given on donation. He submitted that proper course would be for claiming the deduction, is to give the information during the year under consideration so that the assessing authority may verify the fact. The claim of deduction after two years without any information is not verifiable.

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

It is settled principal of law that while reversing the order of the first appellate authority, Tribunal should have considered the reasoning and the findings recorded by the first appellate authority. First appellate authority held that the capacity of the kiln was less than three lacs bricks and relying upon the order of the Tribunal in the Second Appeal no.286/86, dated 30.11.1988 held that in a kiln of three lacs bricks capacity, the production of one lac bricks takes place in ten days. This finding of the first appellate authority has not been considered by the Tribunal and, therefore, the order of the Tribunal in this regard is vitiated.

So far as the claim of one lac bricks used for personal purposes and one lac bricks given on donation to the college is concerned, I do not find any substance in the argument of learned counsel for the applicant.

Admittedly, no information for the use of bricks in the construction of own house and for giving the bricks on donation to the college was given during the year under consideration for the purpose of the verification. Gram Pradhan is not the expert to verify the use of bricks for personal purposes and, therefore, no reliance can be placed on the certificate of Gram Pradhan. The certificate of the Principal, Madhuban Bal Gopal Inter College, Sri Gopi Singh Yadav, which is annexure SA-2 to the supplementary affidavit does not reveals that one lac bricks, which is claimed to have been given on donation relates to the kiln in dispute. It only stated that one lac bricks has been on donation in the month of March 26, 1997. The name of the firm is not mentioned in the certificate. Therefore, on the basis of the said certificate, claim can not be allowed.

In the result, revision is allowed in part. Order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in accordance to the law after giving opportunity of hearing to the applicant in the light of the observations made above.

Dt.15.03.2007

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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