High Court of Judicature at Allahabad
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M/S Laxmi Int Udyog v. Commissioner Of Trade Tax, U.P. - SALES/TRADE TAX REVISION No. 2033 of 2004  RD-AH 834 (20 September 2004)
Court no. 55
Trade Tax Revision no. 2033 of 2004.
M/S Laxmi Int Udyog, Allahabad. ... Revisionist.
The Commissioner of Trade Tax, U. P. Lucknow ... Respondent.
Hon'ble Rajes Kumar, J.
The present revision under Section 11 of U. P. Trade Tax Act (hereinafter referred to as ''Act') is directed against the order of Tribunal dated 8.6.2004 relating to assessment years 1993-94.
Applicant had two Kilns. Dispute relates to only one Kiln of 20 Paya. Applicant contended that the Kiln was not operated during the year under consideration. However, Assessing Authority had not accepted the claim of the applicant and estimated taxable turnover at Rs.6,70,000/-. First Appeal filed by the dealer was rejected. Dealer filed second appeal before the Tribunal, which was allowed in part. Tribunal has estimated the turnover of bricks at Rs.3,51,000/- and turnover of sand at Rs.5,000. Being aggrieved by the aforesaid order, present revision has been filed.
Heard Counsel for the parties.
Learned Counsel for the applicant stated that there was no material on record to show that the applicant had operated the Kiln in the year under consideration. He submitted that at the time of survey dated 8.3.1994, only Pathai & Bharai were found and the Kiln was found filled by 1,50,000 Kachchi bricks and there was stock of 1 Lac Pakki bricks and stock of coal was nil and it was told that firing will start after 2 weeks. Thereafter, on 19.3.1994, applicant moved an application to the Sales Tax Officer, Sector-3, Sales Tax vide receipt no. 618775 dated 19.3.1994, by which, it was informed that due to dispute, they will not run the Kiln and Kachchi bricks would be filled in another Kiln. He submitted that thereafter, a survey was made on 27.4.1994, in which, also Kiln was found closed and the same quantity of Kachchi and Pakki bricks were found and there was no stock of coal and the Kiln was found closed. Learned Standing Counsel supported the order of Tribunal.
I have perused the order of Tribunal and the authorities below. In my opinion, order of Tribunal cannot be sustained. Tribunal has estimated the turnover merely on the ground that at the time of survey dated 8.3.1994, it was told that the Kiln was closed since the last 3-4 years, but no information in this regard was given. Perusal of survey report dated 8.3.1994 shows that only Pathai and Bharai were going on and the Kiln was filled by 1,50,000 Kachchi bricks and one-Lac Pakki bricks were found outside the Kiln. There was no stock of coal. It was told that the firing would be started after two weeks. Thereafter on 19.3.1994 vide receipt no.618775, applicant informed the Sales Tax Officer that due to dispute, they will not operate the Kiln and One Lac Fifty thousand Kachchi bricks which were found filled in the Kiln, would be taken out and would be filled in another Kiln. At the time of survey-dated 27.4.1994, Kiln was not found in operation and a stock of 1,50,000 Kachchi bricks and one Lac of Pakki bricks were found and no stock of coal was found. On the aforesaid material, it cannot be said that the applicant had operated the Kiln during the year under consideration. There was no material on record to show that the Kiln had operated during the year under consideration.
In the result, revision is allowed. Order of Tribunal is set aside and the applicant is declared non-taxable.
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