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THE COMMISSIONER, TRADE TAX,U.P. LUCKNOW versus KHANDELWAL ENGINEERING CORPORATION, AGRA

High Court of Judicature at Allahabad

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The Commissioner, Trade Tax,U.P. Lucknow v. Khandelwal Engineering Corporation, Agra - SALES/TRADE TAX REVISION No. 954 of 1997 [2005] RD-AH 2263 (1 September 2005)

 

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. 954 Of 1997.

Commissioner of Trade Tax, U. P. Lucknow. ...Applicant. Vs

S/S Kahndelwal Engineering Corpn., Agra. ... Opposite party.

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 24.02.1997 relating to assessment year 1986-87 under the Central Sales Tax Act.

The following three questions have been raised in the present revision:-

(i) Whether under the facts and circumstances of the case, Hon'ble Trade Tax Tribunal was justified in accepting the turnover disclosed by the assessee?

(ii) Whether under the facts and circumstances of the case, Hon'ble Trade Tax Tribunal was justified in accepting the stock transfer disclosed by the assessee?

(iii) Whether under the facts and circumstances of the case, Hon'ble Trade Tax Tribunal was justified in accepting the form-C filed at the state of second appeal?"

In the assessment proceedings, dealer/opposite party (hereinafter referred to as "the dealer") claimed to have made stock transfer to its Patna Branch of Rs.17,68,150/-.  Assessing Authority rejected the claim of stock transfer on account of some discrepancies in the application for registration moved in Form-6 at Patna.  Assessing Authority enhanced the turnover on the ground of alleged discrepancies found in the books of account, stated in the assessment order under the U. P. Trade Tax Act.  Tax @ 10% was also levied on the turnover of Pumping Sets of Rs.2,48,674/-, for which, Form-C could not be filed.  Dealer filed appeal before the Deputy Commissioner (Appeals), Sales Tax, Agra.  Deputy Commissioner (Appeals)vide order dated 1.2.1992, allowed the appeal and remanded the matter back to the Assessing Officer for afresh assessment.  First Appellate Authority held that to prove the stock transfer, burden lies upon the assessee, for which, Form-F was filed.  Appellate Authority observed that Form-F had not been examined and therefore, matter was remanded back to the Assessing Officer to examine the Form-F and decide the issue afresh.  Dealer filed appeal before the Tribunal.  Tribunal vide its impugned order, allowed the appeal.  Tribunal held that the remand of the case by D. C. (Appeals), is not justified and also accepted the stock transfer to Patna Branch on the basis of assessment order dated 16.4.1990 passed by the Assessing Officer, Patna.  It appears that Form-C for Rs.2,48,274/- was filed before the Tribunal alongwith the application under Section 12-B of the Act which has been admitted and tax @ 4% has been levied.  Tribunal has also accepted the disclosed turnover and deleted the enhancement of the turnover on the ground that the books of account and the disclosed turnover had been accepted under the U. P. Trade Tax Act.

Heard Sri U. K. Pandey, learned Standing Counsel and Sri Bharatji Agarwal, Senior Advocate appearing on behalf of the opposite party.

Learned Standing Counsel submitted that in T. T. R. no. 761 of 1997 Commissioner, Trade Tax, U. P. Lucknow Vs. S/S Khandelwal Engineering Corporation, Agra decided on 30.8.2005 relating to U. P. sales, this Court has remanded the matter back to the Tribunal to decide the question of estimate afresh.  He further submitted that the acceptance of stock transfer to its Branch Office, Patna merely on the basis of assessment order passed by the Assessing Officer, Patna without examination of Form-F and each transaction is unjustified.  He further submitted that after accepting the Form-C for Rs.2,48,274/-, opportunity should be provided to the Assessing Officer to examine its correctness which has not been allowed.  Learned Counsel for the dealer relied upon the order of Tribunal.

I have perused the order of Tribunal and the authorities below.  Perusal of assessment order shows that the stock transfer to its Patna Branch was rejected merely on account of discrepancies found in the Registration application.  Transaction of stock transfer as well as Form-F which have been filed in support of claim of stock transfer, had not been examined, therefore, First Appellate Authority remanded the matter back to the Assessing Officer to examine the Form-F.  In the circumstances, Tribunal should not interfere in the matter. Thus, remand of case to the Assessing Officer for examination of stock transfer and Form-F is upheld. So far as, acceptance of Form-C by the Tribunal is concerned, there is no error in the order of Tribunal, but giving the benefit of concessional rate of tax @ 4% without giving opportunity to the Assessing Authority to examine the correctness of Form-C, is not justified.  Thus, the Assessing Authority is directed to examine the Form-C for Rs.2,48,274/- filed before the Tribunal and allow the benefit of concessional rate of tax in accordance to law.  Assessing Authority may also consider the question of enhancement of the turnover in the light of the observations made by this Court in T. T. R. no. 761 of 1997 Commissioner, Trade Tax, U. P. Lucknow Vs. S/S Khandelwal Engineering Corporation, Agra decided on 30.8.2005 and decision of Tribunal in pursuance thereof.

In the result, revision is allowed.  Order of Tribunal dated 24.2.1997 is set aside and the matter is remanded back to the Assessing Officer to decide the matter afresh.

Dt:01.9.2005.MZ/-


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