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S/S JANCHETNA UDYOGIC VIKAS SAMITI versus THE COMMISSIONER OF TRADE TAX, U.P. AT LUCKNOW

High Court of Judicature at Allahabad

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S/S Janchetna Udyogic Vikas Samiti v. The Commissioner Of Trade Tax, U.P. At Lucknow - SALES/TRADE TAX REVISION No. 749 of 2004 [2004] RD-AH 557 (16 August 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.749 OF 2004

AND

TRADE TAX REVISION NO.750 OF 2004

S/s Janchetna Udyogik Vikas Samiti, Ballia. ....Applicant

Versus

The Commissioner of  Trade Tax U.P., Lucknow. ....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 23.10.2003 relating to the assessment year 2000-2001 both under the U.P. Trade Tax Act and under the Central Sales Tax Act.

Applicant was engaged in the business of manufacture and sale of lime and had been granted registration under the U.P. Trade Tax Act and under the Central Sales Tax Act. It appears that registration of the applicant was cancelled on the ground that applicant had made the purchases of coal to the extent of 1218 MT in the month of March, 2000 but the same had not been used in the manufacturing of lime. This inference was drawn on the ground that the applicant had not disclosed any sales in the month of April and at the time of survey dated 02.06.2000 manufacturing activity was not found. Applicant filed reply, in which it was stated that head office of the unit was at Haldi and factory was at Gopalpur Deve, Chapra, Ballia and the alleged survey was not made at the factory. It was submitted that the imported coal was used in the manufacturing of lime, which was sold. Assessing authority, however, rejected the registration both under the U.P. Trade Tax Act and under the Central Sales Tax Act. Applicant filed two appeals before the Deputy Commissioner (Appeals) Trade Tax, Ghazipur. First appellate authority allowed the appeals and set aside the orders passed by assessing authority canceling the registration. Commissioner of Trade Tax filed two appeals before the Tribunal. Tribunal vide order dated 23.10.2003 allowed the appeals and remanded back the matter to the first appellate authority to examine whether the applicant had manufactured the lime out of the imported coal and may also consider the closure of the production at the time of survey.

Heard learned counsel for the parties.

In my opinion, order of Tribunal is erroneous and can not be sustained. It appears that Tribunal has not considered the explanation given by the applicant and the material available on record. Tribunal is the court of fact and under section 10 of the Act has to decide the appeal after going through the record. It appears that Tribunal has decided the appeal without looking into the record. If the record would have been seen, there was no occasion  to remand back the case to the first appellate authority to decide the appeal afresh. Perusal of the assessment order shows that the applicant in reply to the show cause notice stated that the survey was not made at the factory, which was situated at Gopalpur Debe, Chapra, Ballia and it was further explained that the imported coal was used in the manufacturing of lime, which was also sold. Ground of appeal, filed by Commissioner of Trade Tax before the Tribunal also shows that it has been accepted that the applicant had shown the manufacturing of lime out of imported coal had also disclosed the production and sale in the month of May. When these facts are available on record, there is no justification in remanding back the case of the first appellate authority. Tribunal is Court of fact, should look into the record and decide the appeal on the basis of the material available on record. In my opinion, remand of the case to the first appellate authority is wholly unjustified and erroneous.

In the result, both the revision are allowed. Order of Tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeals afresh in the light of the observation made above.

Dt.16.08.2004

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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