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Shaddan Ali, Brick Kiln Owner, Roza, Shahjahanpur. v. Commissioner Trade Tax U.P. - SALES/TRADE TAX REVISION No. 710 of 2000 [2007] RD-AH 5741 (30 March 2007)


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Court no.22


Shaddan Ali, Brick Kiln Owner, Roza, Shahjahanpur.    Applicant


The Commissioner, 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 3rd June, 2000  relating to the assessment year, 1990-91.

The applicant was engaged in the business of manufacture and sales of bricks. During the year under consideration, the applicant claimed to have operated the kiln for 24 days in the second season from 20th February, 1991 to 4th March, 1991 and from 21st March, 1991 to 31st March, 1991. Assessing authority  estimated the firing period for 40 days , which has been affirmed by the first appellate authority and by the Tribunal.

Heard the learned counsel for the parties.

Learned counsel for the applicant submitted that the applicant has given information of the closure of the firing from 5th March, 1991  and further start of the firing from 21st March, 1991 on 21.3.1991 vide receipt no. 2461, which is not in dispute. In the information, it was stated that the firing was started from 20th February, 1991, but due to the fact that the labour had run away in the night of 5th March, 1991, the firing was closed and was further started on 21st March, 1991. After the information, no survey was made by the assessing authority during the year under consideration. He further submitted that the survey dated 23rd April, 1991 does not suggest anything to the contrary and in this view of the matter, firing period should be accepted.

Learned Standing Counsel submitted that the information of the closure of the firing was given late. He further submitted that at the time of survey dated 23rd April, 1991, applicant told to have started the firing from 20th February, 1991, but has not told anything about the closure of the firing from 5th March, 1991 to 20th March, 1991and, therefore, the closure of the production during the aforesaid period cannot be accepted.

Having heard the learned counsel for the parties, I have perused the order of the Tribunal and the authorities below and the survey report dated 23rd April, 1991, which has been filed along with the supplementary affidavit.

It is true that the kiln normally run from December to June. If the firing is claimed to have been closed during the aforesaid period, burden lies upon the applicant to  prove it. In the present case, applicant has informed on 21st March, 1991 about the closure of the firing from 5th March, 1991. There is no contrary material on record to dispute the closure of the firing from 5th March, 1991. When the information was given on 21st March, 1991, assessing authority should have immediately made the survey and verify the correctness of the information, but the assessing authority failed to discharge its obligation. At the time of survey dated 23rd April, 1991, books of account, namely, stock register, sale register, bharai register and pathai register were found. Survey does not suggest that the closure claimed by the applicant was incorrect. In the survey, it is mentioned that firing was started from 20th February, 1991. Survey report does not suggest that any query with regard to the closure of  firing from 5th March, 1991 was made. If the surveying authority had gone for the survey, it is obligatory on its part to make the query about the operation of the kiln, particularly when the information was given by the applicant. In the present case about the closure of the firing from 5th March, 1991, specific query should be made by the surveying authority, but no query was made. In the circumstances, in the absence of any material to the contrary, there is no reason to dispute the closure of the firing between 5th March, 1991 to 20th March, 1991. Firing period disclosed by the applicant is accordingly, accepted. Tribunal is directed to estimate the production on the basis of the firing period disclosed by the applicant.

In the result, revision is allowed. The order of the Tribunal is set aside and the Tribunal is directed to redetermine the production and the turnover.




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