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M/S HOME NIDHI KISHAN LAL versus THE SALES TAX COMMISIONER, U.P.

High Court of Judicature at Allahabad

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M/S Home Nidhi Kishan Lal v. The Sales Tax Commisioner, U.P. - SALES/TRADE TAX REVISION No. 102 of 1993 [2004] RD-AH 947 (29 September 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..

Sales Tax Revision  No.  102 of 1993.

M/S Homnidhi Kishan Lal Arhati, Bulandshahr                             Applicant.

                                       Versus

Commissioner, Sales Tax,U.P.Lucknow.                                        Opp-Party.

Hon'ble Rajes Kumar,J.

Present revision under section 11 of the U.P. Sales Tax Act (hereinafter referred to as the Act ) is directed against the order of the Tribunal dated 21st December, 1992 relating to the assessment year, 1988-89.

During the year under consideration , the applicant has purchased Gur at Rs.7,14,192.50 paise from M/S Chukkhan Lal Devendra Kumar Arhati, Jahangirabad, District Bulandshahr and received forms-III-C(2) from the said party. The applicant had filed form III-C (2) no.400633 on 23.9.88 before the  Assessing Authority. In the order-sheet the receipt of said form III-C (2) is mentioned. However, the original copy of form III-C (2) which was filed before the Assessing Authority was not available on record and, therefore, the Assessing Authority asked the applicant to obtain and file another form III-C (2) which the applicant could not filed. The Assessing Authority rejected the claim of the exemption on the ground that another form III-C (2) in respect of the said purchase was not filed . It is further observed that M/S Chhukkan Lal Devendra Kumar Arhati had not paid the tax on such transactions, The applicant filed appeal before the Deputy Commissioner  ( Appeals), Sales Tax, Ghaziabad which was allowed and the claim of exemption against the said form was accepted . The First Appellate Authority observed that the dealer had filed form III-C (2) bearing no.400633 before the Assessing Authority in respect  of the purchase of Gur made from M/S Chhukkan Lal Devendra Kumar Arhati on 15.6.1988 and 18.6.1988. It has been further observed that the report was sought from Sales Tax Officer that whether the said form III-C (2) was ever declared invalid. The Sales Tax Officer ,Sector-II, Bulandshahr vide letter no.1467 dated 28.2.1992 informed that M/S Chhukkan Lal Devendra Kumar Arhati was registered from 1.7.1971 and their registration was cancelled with effect from 21.6.1988 and form issued to M/S Chhukkan Lal Devendra Kumar Arhati has not been declared invalid. The Commissioner of Sales Tax filed appeal before the Tribunal against the order of Deputy Commissioner ( Appeals ). The Tribunal allowed the appeal and set aside the order of the First Appellate Authority and restored the order of the Assessing Authority.

Heard the learned counsel for the parties.

The Tribunal has accepted that the applicant has filed said form III-C (2) before the Assessing Authority. Thereafter the Tribunal proceeded to examine the correctness of the form III-C (2) on the basis of the photostat copy and duplicate copy of the form provided by the applicant. Tribunal has observed that the form was not filled properly in accordance to Circular issued by the Commissioner of Sales Tax dated 11th March,1977 and, accordingly, the claim against the said form III-C (2) has been rejected.

Learned counsel for the applicant submitted that the column of the form was properly filled and it consists all the details which is required to be given in accordance to Rules. He submitted that the Tribunal has erred in rejecting the claim on the basis of the Circular issued by the Commissioner while the correctness of the form should be examined with reference to the Rules.

I have perused the order of the Tribunal and the Authorities below. In the absence of the original form which appears to have been lost from the file of the Assessing Authority, on a peculiar facts and circumstances of the case, claim of exemption is to be examined on the basis of counter-foil/ duplicate form. In the present case, the applicant has submitted the photostat copy of the original form and the counter-foil of the said form. This form is to be examined in accordance to Rules 12-B. In case, if any defect is found in the form, the same should be confronted to the dealer and dealer may be given opportunity to get it rectified. In the circumstances, the matter is remanded back to the Assessing Authority to examine the photostat copy and the duplicate/ counter-foil of the form and if this form is found in order, exemption should be allowed. In case, if according to Assessing Authority it is not in order, the applicant may be given opportunity to get it corrected or to give its explanation about any alleged discrepancy.

In the result, revision is allowed. The order of the Tribunal and the Authorities below are set aside. The matter is remanded back to the Assessing Authority to decide the assessment order afresh in the light of the observations made above.

29.9.2004.

VS.


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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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