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Commissioner Trade Tax v. Jindal Sales Corpn. - SALES/TRADE TAX REVISION No. 271 of 1992 [2005] RD-AH 3558 (26 September 2005)


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The Commissioner, Sales Tax, U.P. Lucknow. ....Applicant


S/S Jindal Sales Corporation, Moradabad. ....Opp. Party


Hon'ble Rajes Kumar, J.

Present revision under section 11 of U.P. Sales Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 29.08.1991 for the assessment year 1989-90.

In the assessment year in dispute assessing authority levied the tax on the turn over of stainless steel circles and strips @ 4% treated it as iron steel under section 14 of Central Sales Tax Act. Assessing authority had also rejected the books of account and enhanced the turn over. Against the order of assessing authority rejecting the books of account and enhancing the turn over dealer/opposite party (hereinafter referred to as "Dealer") filed appeal before the Deputy Commissioner (Appeals), Trade Tax Moradabad. During the course of hearing of the appeal Deputy Commissioner (Appeals) was of the view found that the tax on the turn over of stainless steel circles and strips had been wrongly levied @ 4% as iron steel while it should be taxed as unclassified item @ 8%. He accordingly, issued the notice to the dealer in this regard and after adjudicating the issue levied the tax @ 8% on the turn over of stainless steel circles and strips treating it as an unclassified item and enhanced the tax by Rs.67,200/-/ Against the order of Deputy Commissioner (Appeals) dealer filed appeal before the Tribunal challenging the estimate of the turn over as well as levy of tax on the turn over of stainless steel circles and strips @ 8%. Tribunal allowed the appeal in part. Tribunal reduced the turn over to Rs.12 lacs and has also upheld the levy of tax @ 4%  on the turn over of stainless steel circles and strips on the ground that Deputy Commissioner (Appeals) had no jurisdiction to adjudicate the issue  with regard to the rate of tax on the stainless steel circles and strips because it was not subject matter of dispute in appeal.  Revenue filed present revision against the order of Tribunal challenging the order on the ground that the Tribunal has wrongly  held that the appellate authority had no jurisdiction to consider the question of rate of tax on the stainless steel circles and strips  because it was not the subject matter in appeal.

Heard learned Standing Counsel. No one appears on behalf of the dealer, inspite of the service of notice.

Learned Standing Counsel submitted that in the case of M/s Saru Smelting Private Ltd., Meerut Vs. CST, reported in 1997 UPTC, 204 it has been held by this Court that appellate authority has jurisdiction to consider all the issues even though not the subject matter of appeal.  He submitted that the aforesaid judgment has been followed by this court in the case of CST Vs. S/s Meerut Int Bhatta Kalyan Sewa Samiti, Meerut, reported in 2003 UPTC, 1051 and CTT Vs. Kranti Enterprises, Dhampur, reported in 2004 NTN (Vol.24), 585.

Having heard learned Standing Counsel and perused the order of Tribunal. In my view order of the Tribunal is not sustainable in view of the law laid down by this Court in the case of M/s Saru Smelting Private Ltd., Meerut Vs. CST (supra).

In the aforesaid case it has been held that first appellate authority has power to consider those issues also which are not subject matter of the appeal. In this view of the matter, order of the Tribunal is set aside.

In the result, revision is allowed. Order of the Tribunal 29.08.1991 in appeal no.501 of 1991 (Assessment Year 1989-90) is set aside and matter is remanded back to the Tribunal to decide the issue with regard to the taxability of stainless steel circles and strips on merit.




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