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THE COMMISSIONER TRADE TAX, UP versus S/S CENTRAL COEL FIELD LTD

High Court of Judicature at Allahabad

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The Commissioner Trade Tax, Up v. S/S Central Coel Field Ltd - SALES/TRADE TAX REVISION No. 2933 of 2004 [2007] RD-AH 6406 (6 April 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.  2933 of  2004.

AND

Trade Tax Revision no. 2976 of  2004.

Commissioner of Trade Tax, U. P. Lucknow. ... Revisionist.

Vs

M/S Central Coal Field Ltd. Ranchi. ... Opp. Party

Hon'ble Rajes Kumar, J.

These two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 19.08.2004 both relating to the assessment years 1996-97.

Opposite Party is a Government of India Enterprises.  It had obtained Transit Pass no. 3901 dated 17.3.1997 for transmission assembly valuing Rs.34 Lacs at the entry Check Post but the same was not surrendered at the Exit Check Post by 20.3.1997.  Admittedly, the Transit Pass has not been surrendered at the Exit Check Post.  On the information being received for non surrender of Transit Pass, proceedings under Section 7 (4) and under Section 15-A (1) (q) of the Act were initiated.  The dealer did not appear before the Assessing Authority which resulted ex-parte orders under Section 7 (4) and under Section 15-A (1) (q) of the Act.  The Assessing Authority levied the tax at Rs.3,40,000/- and penalty under Section 15-A (1) (q) of the Act at Rs.13,60,000/-.  Being aggrieved by the orders, opposite party filed two appeals before the Deputy Commissioner (Appeals), Trade Tax, Allahabad.  The Deputy Commissioner (Appeals), Trade Tax, Allahabad vide order dated 8.10.1997 allowed both the appeals and set aside the assessment order under Section 7 (4) of the Act as well as the penalty order under Section 15-A (1) (q) of the Act.  Being aggrieved by the order of the Deputy Commissioner (Appeals), Trade Tax, Allahabad, the Commissioner of Trade Tax, Allahabad filed appeals before the Tribunal.  The Tribunal by the impugned order, rejected both the appeals.

Heard Sri B. K. Pandey, learned Standing Counsel and Sri S. M. Dayal , learned Counsel for the opposite party.

Learned Standing Counsel submitted that admittedly, the Transit Pass no. 3901 dated 17.3.1997 could not be surrendered at the Exit Check Post, therefore, under Section 28-B of the Act, it was presumed that the transmission assemblies, in respect of which, Transit Pass was obtained have been sold inside the State of U. P. and on the basis of the said presumption, assessment proceeding under Section 7 (4) of the Act and penalty proceeding under Section 15-A (1) (q) of the Act were initiated and the notices were issued to the opposite party, but the opposite party did not appear before the Assessing Authority, therefore, ex-parte orders were passed.  He submitted that from the perusal of the order of the Deputy Commissioner (Appeals), Trade Tax, Allahabad as well as the Tribunal, it appears that some documents were filed before the Appellate Authority to establish that the transmission assemblies were not sold inside the State of U. P. and had gone outside the State of U. P. but from such documents, it is not established that the transmission assemblies in respect of which, Transit Pass were obtained, had crossed the State of U. P.  He submitted that both the Appellate Authorities have erred in accepting the claim of the opposite party that the alleged machinery, had gone for repair and the another Form 34 was obtained on 18.3.1997 at Aurhimorh Check Post which was subsequently surrendered on 19.3.1997. He submitted that it cannot be believed that in respect of same transmission assemblies, how another Form 34 could be obtained on 18.3.1997.  In fact, the Transit Pass which was obtained on 17.3.1997 was to be surrendered at Aurhimorh Check Post by 20.3.1997.  He submitted that the documents which have been filed alongwith the Supplementary affidavit do not establishes, that the goods had gone outside the State of U. P.  

Learned Counsel for the opposite party submitted that the alleged two transmission assemblies were brought inside the State of U. P. for repair and had gone outside the State of U. P., therefore, assessment order under Section 7 (4) of the Act and the penalty order under Section 15-A (1) (q) of the Act are not sustainable.

Having heard learned Counsel for the parties, I have perused the order of Tribunal and the authorities below and also gone through the various documents annexed alongwith the Supplementary affidavit.  

Admittedly, the Transit Pass no. 3901 dated 17.3.1997 was not surrendered at the Exit Check Post which was obtained in respect of two transmission assemblies.  Thus, in view of Section 28-B, it was presumed that they have been sold  in U. P.  Such presumption was a rebutable presumption and it was open to the opposite party to rebut the presumption by adducing the evidences.  The opposite party did not appear before the Assessing Authority which resulted ex-parte orders.  It appears that some documents were filed before the Deputy Commissioner (Appeals), Trade Tax to prove that the transmission assemblies, in respect of which, Transit Pass was obtained, had gone outside the State of U. P.  As per the learned Counsel for the opposite party, such documents have been filed alongwith the Supplementary affidavit.  I have perused the said documents. Such documents do not establishes that the transmission assemblies in respect of which, Transit Pass were obtained, had gone outside the State of U. P.  

On the facts and circumstances of the case, I am of the view that since the ex-parte assessment order was passed by the Assessing Authority and the Assessing Authority could not get opportunity to examine those documents, it would be appropriate to remand the case back to the Assessing Authority for passing fresh assessment order.  It will be open to the opposite party to adduce any evidence in support of its claim, to prove that the goods have not been sold inside the State of U. P. and had gone outside the State of U. P.  

In the result, both the revisions are allowed.  Order of the Tribunal is set aside and the matter is remanded back to the Trade Tax Officer, Vidhamganj Check Post for passing assessment order afresh after giving  proper opportunity of hearing.   The dealer may appear before the Trade Tax Officer, Vidhamganj Check Post on 23.04.2007 alongwith the certified copy of the order.  It is made clear that no fresh notice need be issued to the dealer.

Dt:06.04.2007.

MZ/-


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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