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COMMISSIONER TRADE TAX versus DO ABA ENGG. WORKS

High Court of Judicature at Allahabad

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Commissioner Trade Tax v. Do Aba Engg. Works - SALES/TRADE TAX REVISION No. 1203 of 1994 [2004] RD-AH 1445 (19 November 2004)

 

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. 55

Trade Tax Revision no. 1203 of 1994.

AND

Trade Tax Revision no. 1300 of 1994.

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

Vs

S/S Do Aba Engineering Works, Saharanpur. ... Respondent.

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 7.5.1994 relating to the assessment years 1986-87 and 1987-88.

The following question has been raised:-

"Whether the Trade Tax Tribunal was legally justified to hold that ball bearing Jali manufactured by the dealer is covered under the Notification no. ST-II 7038/X-7(23/82) U. P. Act 15-48 order 85 dated 31.1.1985 and hence exempt under Section 4 of the U. P. Trade Tax Act as parts and accessories of animal driven vehicles despite the fact that the aforesaid commodity falls under the category of an unclassified item and consequently taxable at the rate of 8"?

The Assessing Authority had levied tax on the turnover of Ball Bearing Jali as an unclassified item.  Claim of dealer was that it was the parts and accessories of Animal driven agriculture implement and therefore, it was not liable to tax.  First Appeal filed by the dealer was allowed and the turnover of Ball Bearing Jali had been exempted from tax being parts and accessories of Animal Driven Vehicle.  Appeal filed by the Commissioner of Sales Tax has been rejected.

Heard Counsel for the parties.

Learned Standing Counsel submitted that the relevant Notification for the year under consideration is Notification no. ST-II-7038/X-7(23/82) U. P. Act 15-48 order 85 dated 31.1.1985, in which, details of agriculture implement parts accessories and attachment of Animal Driven Vehicle are given and the Ball Bearing Jali is not covered under any of the items mentioned in the Notification, therefore, it cannot be exempted from tax. He submitted that the First Appellate Authority as well as Tribunal have not considered the above Notification at all and exempted the turnover of Ball Bearing Jali being parts and accessories of Animal Driven Vehicle.  Learned Counsel for the opp. party submitted that the First Appellate Authority and the Tribunal have categorically recorded the finding that the Ball Bearing Jalis was parts and accessories of Animal Driven Vehicle and therefore, it was exempted from tax.  He submitted that in the case of Commissioner of Sales Tax, U. P. Lucknow Vs. M/S Tomar Agriculture India, Baraut reported in 2004 NTN, page 357 , it is held that that even Chaknut and Stud Bolt have been treated as part of Animal Driven Vehicle.   He submitted that items mentioned in the Notification of 1985 are only illustrative and not exhaustive.

Having heard Counsel for the parties and perused the order of Tribunal and the authorities below.  In my opinion, order of Tribunal can not be sustained.

The Notification no. ST-II-7038/X-7(23/82) U. P. Act 15-48 order 85 dated 31.1.1985 reads as follow:-

In exercise of the powers under clause (a) OF section 4 of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act no. XV of 1948), read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act no. 1 of 1904) and in supersession of all previous notifications issued under aforesaid clause (a) of section 4, the Governor is pleased to exempt, with effect from February 1, 1985, the goods mentioned in column 2 of Schedule, hereunder from payment of tax under the said Act of 1948, subject to the conditions, if any, specified in column 3 thereof.

Sl. No. Description of goods conditions

   1 2         3

1. Agriculture implements and parts, accessories

           and attachments thereof, as per details given

below.

A.....

"B. Animal drawn Agricultural implements-

     Yoke, Plough, Harrow, Cultivator or Triphall, Seed Drill, Fertilizer Drill, Seed cum Fertilizer Drill, Planter, Plank or float, Leveler or Scoop, Ridger, Ditcher, Bund, former, Thresher or Palla, Trans-planter, Chaff cutter, Persian-wheel and bucket, Chain or washer chain, Cart Reaper, Mower, Sugarcane Crusher, Cane Juice boiling pan and Grating roller."

"C........

"D.......

Perusal of Notification shows that only those item which are mentioned in the Notification, are considered as agriculture implement and attachment thereof.  Items mentioned in the Notification are not illustrative but exhaustive and therefore, unless impugned item is covered under the items mentioned in the Notification it can not be exempted.  The decision of this Court in the case of Commissioner of Sales Tax, U. P. Lucknow Vs. M/S Tomar Agriculture India, (supra) is not applicable to the present case.  It was relating to the assessment year 1983-84 and 1984-85 when Notification no. ST-II-7991/X-11(9)-78 dated 14.11.1980 was applicable, in which, "Animal Driven Vehicles including parts having pneumatic tyre- Wheels, Crew bars, Sugarcane Planters and accessories, attachments and spare parts of these agricultural implements" was exempted.  

In the result, both the revisions are allowed.  Order of Tribunal and the order of First Appellate Authority are set aside and it is held that Ball Bearing Jali is not exempted from tax and is liable to tax as an unclassified items.

Dt:19.11.2004.

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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