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Commissioner,Trade Tax,U.P.Lucknow v. Sri Ram Agency,Chwok Bazar,Banda - SALES/TRADE TAX REVISION No. 965 of 2000 [2007] RD-AH 5327 (26 March 2007)


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The Commissioner, Trade Tax, U.P., Lucknow.       ....Applicant


S/S Sri Ram Agency, Chowk Bazar, Banda.   .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 04.04.2000 relating to the assessment year 1995-96 under U.P. Trade Tax Act.

It appears that the dealer/opposite party (hereinafter referred to as "Dealer") applied under the compounding scheme under section 7-D of the Act. The said application was rejected by the Deputy Commissioner (Executive), Trade Tax Banda vide order/letter no.1544, dated 03.02.1998. As a result of the rejection of the compounding application, Trade Tax Officer, Sector-2, Banda  passed the assessment order under Rule 41 (8) of U.P. Trade Tax Rules, 1948 (hereinafter referred to as "Rules")  and estimated the taxable turn over at Rs.4 lacs. Aggrieved by the order of the assessing authority dated 31.03.1998 dealer filed appeal no.853 of 1998 before the Deputy Commissioner (Appeals), Kanpur. Deputy Commissioner (Appeals) vide order dated 06.09.1999 dismissed the appeal. Aggrieved by the aforesaid order dated 06.09.1999 dealer filed appeal no.1346 of 1999 before the Tribunal. Tribunal by the impugned order held that the application under compounding scheme was acceptable and the matter was remanded back to the assessing authority with the direction to accept the application under the compounding scheme.

Heard learned counsel for the parties.

Learned Standing Counsel submitted that the order of the Tribunal is patently erroneous. He submitted that dealer had not filed any appeal against the order dated 03.02.1998 passed by Deputy Commissioner (Executive), Banda by which  application under the compounding scheme under section 7-D of the Act was rejected. As a consequence  assessment order under Rule 41 (8) of the Rules was passed by the assessing authority. Thus, it was not open to the Tribunal to adjudicate the issue with regard to the compounding scheme. Tribunal should have considered only whether the turn over estimated by the assessing authority was justified or not.  Learned counsel for the dealer only supported the order of the Tribunal.

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

In the appeal before the Tribunal, the question involved was with regard to the estimate of turn over and not the rejection of the compounding application. Compounding application was rejected by Deputy Commissioner (Executive) vide order dated 03.02.1998. No appeal was filed against the aforesaid order and the said order has become final. Thus, it was not open to the Tribunal to consider whether the compounding application was acceptable or not. Tribunal in appeal should have only considered whether the estimate of turn over is justified or not.  By the impugned order, Tribunal has accepted the compounding application and remanded back the matter to the assessing authority to give the benefit of the compounding scheme. The view of the Tribunal is patently perverse, arbitrary and without jurisdiction.  In the circumstances, order of the Tribunal is liable to be set aside. Matter is remanded back to the Tribunal to decide the appeal afresh and adjudicate whether the estimate of turn over is justified or not.

In the result, revision is allowed. Order of the Tribunal dated 04.04.2000 in appeal no.1346 of 1999 for the assessment year 1995-96 is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in the light of the observations made above.




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