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M/S HIRA INDUSTRIES versus COMMISSIONER TRADE TAX

High Court of Judicature at Allahabad

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M/S Hira Industries v. Commissioner Trade Tax - SALES/TRADE TAX REVISION No. 843 of 2003 [2003] RD-AH 480 (1 December 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.55

TRADE TAX REVISION NO.843 OF 2003

M/S Hero Industries, Varanasi. ....Applicant

Versus

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

............

Hon'ble Rajes Kumar, J.

This revision is directed against the order of Tribunal dated 19.05.2003 relating to the assessment year 1995-96.

Applicant was carrying on the business of paper. It is claimed that during the year under consideration, applicant had sold paper to M/s Ganga Pustakalaya, Varanasi for Rs.7,20,337/- by transfer of documents under Section 6 (2) of Central Sales Tax Act (hereinafter referred to as "Act"), in respect of which Form-C was received from M/s Ganga Pustakalaya, Varanasi. Applicant had also claimed that during the year under consideration, applicant had sold paper for Rs.5,40,229/- to M/s Bhargava Book Depot, Varanasi by transfer of document under Section 6 (2) of the Act and in respect of which received Form-C from M/s Bhargava Book Depot. In the original assessment proceeding, applicant had filed Form-C, received from both the above parties and Form-E-1 and claimed exemption from tax under Section 6 (2) of the Central Sales Tax Act assessing authority passed assessment order under summary scheme and accepted the claim of the applicant and granted the exemption. Subsequently, assessing authority received information from Sales Tax Officer, (S.I.B.) that M/s Bhargava Book Depot had treated alleged purchases as U.P. purchase in their books of account. Assessing Authority also received information from Assessing Authority of M/s Ganga Pustakalaya that out of total transaction of transfer of document of Rs.7,20,337/-, on the enquiry of books of account of M/s Ganga Purtakalaya it was found that purchases against bill no.23 dated 02.09.1995 for Rs.2,50,585.40 was shown as U.P. purchases and not sale in transit. On the basis of aforesaid two informations proceeding under Section 21 of U.P. Trade Tax Act was initiated.  In the proceeding under Section 21 show cause notice was issued, which was replied by the applicant. Applicant further filed affidavit of partner, Sri Virendra Bhargava of M/s Bhargava Book Depot and affidavit of Sri Prabhu Nath Pandya, authorized representative of M/s Ganga Pustakalaya, in which they have admitted the purchases by transfer of documents and also admitted the payment of freight to the transporter. In respect of sale to M/s Ganga Pustakalaya, applicant had filed freight receipt, which was in the name of M/s Ganga Pustakalaya to prove that freight was paid by M/s Ganga Pustakalaya. On the basis of these documents, it was submitted that so far as applicant is concerned, burden has already been discharged to prove that sale was in transit during the movement of goods in the course of inter-state.  Assessing Authority, however, had not accepted the claim of the applicant and treated such sales as intra-state sales and levied tax under the U.P. Trade Tax Act. First appeal filed by the applicant was rejected. Applicant filed second appeal before Tribunal. Tribunal vide order dated 19.05.2003 remanded back the case to the assessing officer to re-examine the matter afresh. Being aggrieved by the order of Tribunal, present revision has been filed.

Heard Sri R.P.Ginodia, learned counsel for the applicant and Sri B.K.Pandey, learned Standing Counsel.

Contention of learned counsel for the applicant is that Tribunal has erred in remanding back the case to the assessing officer to provide fresh inning and opportunity to probe the matter afresh. He submitted that under Section 21 of U.P. Trade Tax Act burden lies upon the revenue to prove the case that sale was not in  transit but intra-state sale, which revenue had failed to do. He further submitted that so far as applicant is concerned, applicant had filed Form-C received from aforesaid two parties and also submitted necessary documents to prove that freight etc. have been paid by the aforesaid two parties and there is no contrary material on record and merely because in the case of M/s Ganga Pustakalaya and in the case of M/s Bhargava Book Depot their assessing authority were of the view that Form-C were wrongly issued, in the case of applicant transactions can not be treated as intra-state sales.

I have perused the order of Tribunal and the authorities below. In my view, order of Tribunal remanding back the case to provide a fresh inning to assessing authority  is not justified. Under Section 21 burden lies upon the revenue to prove its case. In the present case, applicant had admittedly filed Form-C issued by M/s Ganga Pustakalaya and M/s Bhargava Book Depot and it is not the case that both the aforesaid parties have disputed issuance of Form-C. Applicant had further filed evidences to prove that freight were paid by aforesaid two parties. Affidavit of partner, Sri Virendra Bhargava, partner of M/s Bhargava Book Depot and Sri Prabhu Nath Pandya, authorized representative of M/s Ganga Pustakalaya were filed and freight receipts in the name of M/s Ganga Pustakalaya were also filed before assessing authority. These documents are on record. Therefore, Tribunal ought to have decided the appeal on the basis of the materials available on record instead of remanding back the case to assessing officer. Power to remand should be used sparingly and only in a situation where some enquiry or investigation is required and not to provide fresh inning or opportunity to the assessing authority. However, if Tribunal feel that any document is required to be summoned the same may be summoned by exercising powers under Rule 75.

In this view of the matter, order of Tribunal remanding back the case to the assessing officer is held to be unjustified. Tribunal is directed to decide appeal on merit on the basis of the material available on record.

In the result, revision is allowed. Order of Tribunal dated 19.05.1993 is set aside and Tribunal is directed to decide appeal no.526 of 2000 for the assessment year 1995-96 afresh.

Dt.01.12.2003

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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