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M/S ABHIJEET TECHNO CHEM LTD. versus COMMISSIONER OF TRADE TAX, U.P. LUCKNOW

High Court of Judicature at Allahabad

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M/S Abhijeet Techno Chem Ltd. v. Commissioner Of Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 105 of 2007 [2007] RD-AH 4664 (16 March 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.105 of 2007.

M/S Abhijeet Techno Chem Ltd, Kanpur.    Applicant

Versus

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

AND

TRADE TAX REVISION NO.122 of 2007.

M/S C.T.S. Industries  Ltd, Kanpur.                 Applicant

Versus

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

Hon'ble Rajes Kumar, J.

Present two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 28th December, 2006 both arising from the seizure order no.1172 dated 01.06.2006 passed under section 13-A (6) of the Act by the Trade Tax Officer, Mobile Squad, Kanpur in the name of M/S Abhijeet Techno Chem Ltd., Kanpur.

Brief facts of the case are that on 22nd May, 2006, Additional District Magistrate (Supply)/Joint Magistrate, Kanpur Nagar made a survey at the premises of M/S Abhijeet Techno Chem Ltd, Bheemsen Road, Bhauti, Kanpur. At the time of survey 92 bags of kati supari was found. M/S Abhijeet Techno Chem Ltd, Kanpur is a registered dealer under the U.P. Trade Tax Act and is carrying on the business of Industrial Chemical/Solvent. It is not carrying on business of Supari or the Supari is not being used as raw material in the manufacturing of any of the items in which it was dealing. The matter was referred to Trade Tax Officer, Mobile Squad. Trade Tax Officer, Mobile Squad issued the notice no.10292 dated 26th May, 2006 to M/S Abhijeet Techno Chem Ltd, Kanpur. It appears that the notice was served by affixation. However, no one appeared on behalf of M/S Abhijeet Techno Chem Ltd, Kanpur and an ex-parte assessment order no.1172 was passed in the name of M/S Abhijeet Techno Chem Ltd, Kanpur. By the aforesaid order, 92 bags of kati Supari was seized on the ground that it was not found entered in the books of account. The value of such Supari was estimated at Rs.6,44,000/- and a sum of Rs.2,83,360/- was demanded towards security in cash. Thereafter, it appears that M/S Abhijeet Techno Chem Ltd, Kanpur moved an application under section 22 of the Act for recalling of the ex-parte order and submitted that the alleged goods belonged to another registered dealer M/S CTS Industries Ltd. It was submitted that some of the portion of the premises, where the survey was made, was let out to M/S CTS Industries Ltd, who was engaged in the business of Supari and such Supari which were seized belonged to M/S CTS Industries Ltd. The said application has been rejected. It is also claimed that M/S CTS Industries Ltd has also moved an application before the Trade Tax Officer, Mobile Squad for the release of the goods, but it is not clear that when such application was moved and whether any order on the said application was passed or not. However, against the seizure order both M/S Abhijeet Techno Chem Ltd, Kanpur as well as M/S CTS Industries Ltd filed two separate applications under the proviso to Section 13-A (6) of the Act before the Deputy Commissioner(Enforcement), Range-A, Trade Tax, Kanpur for the release of the goods without any security. In the application moved by M/S Abhijeet Techno Chem Ltd, Kanpur, it has been stated that the premises from where 92 bags of kati Supari was seized was let out to M/S CTS Industries Ltd, a registered dealer carrying on the business of Supari. M/S CTS Industries Ltd claimed that they have taken the portion of the premises on rent from M/S Abhijeet Techno Chem Ltd, Kanpur and 92 bags of Supari belongs to it. It was contended that the alleged Supari were imported against the declaration Form from outside the State of U.P. and duly recorded in the books of account. Deputy Commissioner (Enforcement), Kanpur vide order dated 17th June, 2006 rejected both the applications. Deputy Commissioner (Enforcement) has not accepted the plea that the alleged 92 bags of Supari belonged to M/S CTS Industries Ltd. It has been held that such Supari belonged to M/S Abhijeet Techno Chem Ltd, Kanpur and since the alleged Supari was not found recorded in the books of account of M/S Abhijeet Techno Chem Ltd, Kanpur, the seizure of the goods and the demand of security were upheld. Being aggrieved by the order of the Deputy Commissioner (Enforcement) dated 17th June, 2006, both the aforesaid parties filed two separate appeals before the Tribunal raising similar claims as has been raised before the Deputy Commissioner (Enforcement). Tribunal by the impugned order dismissed both the appeals.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that the Tribunal has patently erred in rejecting the claim of the applicant that the alleged 92 bags of Supari belonged to M/S CTS Industries Ltd, a registered dealer and was carrying on the business of Supari and the premises from where such Supari was seized was taken on rent from M/S Abhijeet Techno Chem Ltd, Kanpur. It was also contended that the alleged Supari were imported from outside the State of U.P. against the declaration Form as contemplated under section 28-A of the Act and are duly recorded in the books of account of M/S CTS Industries Ltd. In this way, it has been proved that the alleged Supari belonged to M/S CTS Industries Ltd and not to M/S Abhijeet Techno Chem Ltd, Kanpur. He further submitted that M/S Abhijeet Techno Chem Ltd, Kanpur is a registered dealer and had never carried on the business of Supari. Learned Standing Counsel relied upon the order of the Tribunal.

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

The question for determination, whether the alleged 92 bags of Supari belongs to M/S CTS Industries Ltd or M/S Abhijeet Techno Chem Ltd, Kanpur is question of fact to be adjudicated on the basis of the evidences. It would be more appropriate that such adjudication may finally be made in the penalty proceeding after considering the rival claims and evidences.

Having regard to the facts that both M/S Abhijeet Techno Chem Ltd, Kanpur and M/S CTS Industries Ltd are the registered dealers under the U.P. Trade Tax Act, I direct the release of the goods on furnishing of cash security to the extent of the amount of tax on the value of the goods and to furnish the security in the form other than cash or bank guarantee for the balance amount demanded. It is made clear that the aforesaid security may be furnished by either of the two parties and will be subject to the final decision. The goods may be released in favour of either party with the consent of both the parties. On furnishing of security, the goods may be released forthwith. After the release of the goods, the seizing authority is directed to refer the matter to the assessing authority for final adjudication. The authority concerned is further directed to conclude the proceeding in pursuance of the seizure expeditiously, preferably within a period of three months. It is made clear that any observations made in this order and in the orders passed by any of the authorities in the seizure proceeding may not effect the final adjudication.

With the aforesaid observations, both the revisions are, accordingly, disposed of.

Dated.16.03.2007.

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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