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M/S Jai Prakash & Sons v. The Commissioner Of Trade Tax - SALES/TRADE TAX REVISION No. 921 of 2005 [2005] RD-AH 2968 (16 September 2005)


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M/S Jai Prakash And Sons, Muzaffarnagar. ....Applicant


Commissioner of Trade Tax, U.P.,

Lucknow. ....Opp.party


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 22.03.2005  relating to the assessment year 1998-99, by which Tribunal has confirmed the order of Joint Commissioner (Appeals) remanding back the matter for further enquiry.

It appears that at the time of survey made by city Magistrate on 29.10.1998  at the business premises of  the applicant.  Certain stock of fertilizer was found and it also alleged that the applicant was involved in adulteration by mixing the goods. On the basis of the said survey applicant has been assessed to tax. Claim of the applicant was that stock of fertilizer did not belong to it and it belong to M/s Bhagwati Khad Bhandar, who had purchased these fertilizers from M/s Gangdhar Chemicals Limited, Bijnor. When the applicant has been asked to explain that how this stock of fertilizer was found at his shop, he explained that the shop was given on rent to M/s Bhagwati Khand Bhandar. However, no evidence in this regard has been produced. In appeal matter has been remanded back by the Deputy Commissioner (Appeals) with the direction to the assessing officer  to make the enquiry from M/s Gangadhar Chemicals Limited and from M/s Bhagwati Khand Bhandar. In pursuance thereof notices were issued to M/s Gangadhar Chemicals Limited and M/s Bhagwati Khand Bhandar. Summons were issued. In pursuance thereof wrote a letter denying the ownership of the goods. However, in pursuance of the summons, it appears that no action has been taken by the assessing authority and assessing authority proceeded to make the assessment  on the ground that the applicant failed to prove that the shop was given on rent and the matter again came up for consideration in appeal before Joint Commissioner (Appeals). He again remanded back the matter to the assessing officer vide order dated 14.08.2003 with the direction to make the proper enquiry. He further directed that both the parties may be summoned and opportunity of cross examination may be given. Order of the Joint Commissioner (Appeals) has been affirmed by the Tribunal.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that the remand of the case is unjustified. He submitted that if the assessing authority failed to comply with the directions given by the first appellate authority  then further opportunity should not be given to comply with the order. I do not find any error in the order of Tribunal.

Admittedly, at the time of survey made by City Magistrate stock of fertilizer was found. Therefore, it is on the applicant to explain that to whom fertilizer belongs. Therefore, it is in the interest of the applicant that from the proper enquiry it is to be ascertained that to whom fertilizer belong. Though assessing authority had only issued the summons to the aforesaid two parties and they have also responded but the assessing authority had not asked those parties to appear and had not given any opportunity for cross examination. Therefore, enquiry was not properly conducted. In these circumstances, direction of the first appellate authority to make proper enquiry and summon the aforesaid two parties to provide opportunity of cross examination can not be said to be unjustified. It is however, mention that it is expected from the assessing officer  to comply with the directions given by the first appellate authority and pass fresh assessment order in accordance to the law.

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




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