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M/S Laxmi And Co v. The Commissioner, Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 2656 of 2004 [2004] RD-AH 1586 (2 December 2004)


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Court no. 55

Trade Tax Revision no. 2656 Of 2004.

M/S Laxmi & Company, Hathras (Aligarh) ... Revisionist.

Commissioner of Trade Tax, U. P. Lucknow ... 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 23.6.2004 relating to the assessment year 1993-94, by which, Tribunal has remanded back the matter to the Assessing Officer.  

In respect of claim of exemption on the turnover at Rs.3,34,421.70p, applicant could not file Form 3-C (2) before the Assessing Authority.  The same was filed before the First Appellate Authority.  First Appellate Authority admitted the Form 3-C (2) and granted exemption against the said Form 3-C (2).  Applicant had sold Pichka Matar for Rs.4,89,337.05p.  Assessing Authority had levied tax on the turnover of Pichka Matar treating it as a Matar.  Claim of the applicant was that it was vegetable seed and therefore, was not liable to tax.  First Appellate Authority accepted the claim and granted exemption on the turnover of Pichka Matar treating it as vegetable seed relying upon the decision of Tribunal in the case of M/S Jwala Prasad Suraj Bhan Vs. C. S. T. in Second Appeal 146 of 1995.  Against the order of First Appellate Authority, Commissioner of Trade Tax filed appeal before the Tribunal.  Before the Tribunal it was contended on behalf of Commissioner of Trade Tax that the First Appellate Authority granted exemption against Form 3-C (2) without giving opportunity to the revenue authorities to examine the said Form 3-C (2).  It was also contended that Pichka Matar is a Matar and not a vegetable seed and, therefore, First Appellate Authority had erroneously granted exemption.  Tribunal allowed the appeal and remanded back the case to the Assessing Officer accepting the plea of revenue that no opportunity was given before granting exemption against Form 3-F (2) which ought to have given.  With regard to turnover of Pichka Matar, Tribunal observed that applicant was a dealer in food grains and Oil seeds and Pichka Matar is one of the species of Dal which is normally used for preparation of vegetable.  It was further observed that apart from Dal, Ata, Chat vegetable is also prepared from Pichka Matar.  Tribunal remanded the matter back to the Assessing Officer to examine whether Pichka Matar was purchased as vegetable seed or not.  

Heard Counsel for the parties.

Learned Counsel for the applicant submitted that remand of the case is not justified.  He submitted that no further enquiry is required in the matter and the entire material is available to the Tribunal to decide the issue, therefore, remand is unjustified.  Learned Standing Counsel supported the order of Tribunal.

Having heard Counsel for the parties.  I do not find any merit in the present revision.  From perusal of order of First Appellate Authority, it is clear that claim against Form 3-C (2) was allowed without giving opportunity to other side and therefore, remand of the case to the Assessing Officer to examine Form 3-C (2) with a view to provide opportunity, can not be said to be erroneous.  With regard to Pichka Matar remand of the case, cannot be said to be unjustified.  In order to arrive at a correct conclusion whether Pichka Matar is a vegetable seed or not, it is necessary to examine, how the Pichka Matar is known in common parlance and in the commercial sense and what is it's actual use.

In the result, revision fails and is, accordingly, dismissed.




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