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M/S PREM BRICK FIELD versus THE COMMISSIONER OF SALES TAX

High Court of Judicature at Allahabad

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M/S Prem Brick Field v. The Commissioner of Sales Tax - SALES/TRADE TAX REVISION No. 159 of 1992 [2003] RD-AH 489 (3 December 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.55

SALES TAX REVISION NO.159 OF 1992

M/S Prem Brick Field ....Applicant

Versus

The Commissioner of Sales Tax ....Opp.Party

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

Hon'ble Rajes Kumar, J.

This revision under Section 11 of U.P. Sales Tax Act (hereinafter referred to as "Act") is directed against the order dated 12.09.1991 relating to the assessment year 1986-87.

Applicant was engaged in the business of manufacture and sales of bricks. It is claimed that during the year under consideration, applicant had operated the klin from 31.12.1986 to 15.01.1987 for 16 days, during which, nikasi of 2,37,000 bricks was made but no sale was effect during the year under consideration.  Assessing Authority, however, by making best judgment assessment estimated the firing period at 44 days and production of bricks at 9 lacs. Assessing Authority estimated the turn over of bricks at Rs.2,58,000/-.  First appeal filed by the applicant was rejected. Applicant filed second appeal before Tribunal, which has been partly allowed. Tribunal has estimated the turn over of bricks at Rs.2,38,650/- and levied the tax on coal under Section 3-AAAA of the Act.

Heard Sri Suyash Agarwal, learned counsel for the applicant and Sri Nimai Das, learned Standing Counsel. I have perused the order of Tribunal and the authorities below.

Contention of learned counsel for the applicant is that assessing authority had estimated the firing period at 44 days, therefore, there was no justification to fix firing period at 54 days by Tribunal. He further submitted that estimate of production of 9 lacs bricks by assessing authority, confirmed by Tribunal is not justified in as much as, assessing authority in the assessment order stated that one round takes more than one month and capacity of klin was taken between 5 to 6 lacs bricks and in this way, according to the learned counsel for the applicant the production should be less than 9 lacs bricks.  He further submitted that while estimating the average selling rate at Rs.370/- per thousand bricks, Tribunal has only observed that in another klin, average selling rate at Rs.370/- per thousand bricks had been fixed without giving any reference to the decision of other klin and, therefore, estimate of average selling rate at Rs.370/- per thousand bricks is not justified.

I have perused the order of Tribunal and the authorities below. Tribunal has proceeded to estimate the production on the ground that 5,50,000 kachchi bricks was in opening stock and 3,98,900 kachchi bricks were prepared. In this way, 9,48,000 kachchi bricks were available for production and thereafter, Tribunal estimated the firing period at 54 days. In my view, before first appellate authority in appeal under Section 9 of the Act, the dispute was the estimate of firing period at 44 days and production at 9 lacs bricks. Hence Tribunal can not travel beyond the order of assessing authority in the appeal filed by the dealer. Thus fixation of firing period at 54 days is arbitrary. Further perusal of show cause notice shows that no query with regard to the opening stock of kachchi bricks of 5,5,000 was raised by assessing authority. It is not always necessary that all kachchi bricks must have been fired during the year under consideration. Further it is also relevant to consider that in firing period of 44 days as fixed by assessing authority whether production at 9 lacs bricks is possible with reference to the observation of assessing officer that one round takes more than one month. Keeping in view, the aforesaid observation, production of bricks requires fresh estimate. Further Tribunal while fixing average selling rate at Rs.370/- per thousand bricks has not given any reference to any case and has not given any basis for such fixation. In view of the above, matter requires reconsideration by Tribunal.

In the result, revision is allowed. Order of Tribunal dated 12.09.1991 is set aside and the matter is remanded back to Tribunal to decide the appeal no.545 of 1988 relating to the assessment year 1986-87 afresh in the light of the observation made above.

Dt.03.12.2003

R./


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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