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THE COMMISSIONER OF TRADE TAX,U.P. LKO versus S/S KAILASH BRICK KILN

High Court of Judicature at Allahabad

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The Commissioner Of Trade Tax,U.P. Lko v. S/S Kailash Brick Kiln - SALES/TRADE TAX REVISION No. 729 of 1995 [2005] RD-AH 3731 (29 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.729 of 1995

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

Versus

M/S Kailash Brick Kiln, Aligarh.                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 17th February, 1995 relating to the assessment year 1981-92.

Dealer/opposite party (hereinafter referred to as "the dealer") was carrying on the business of manufacture and sale of bricks. The assessing authority rejected the books of account, enhanced the estimated turnover of sales of bricks, and also levied the tax on the purchase of coal under section 3-AAAA of the Act. First appeal filed by the dealer was allowed in part. The matter went to the Tribunal. Tribunal deleted the levy of tax under section 3-AAAA of the Act on the ground that the provision of Section 3-AAAA of the Act was declared ultra vires as held in the case of Pioneer Tanneries and Glue Works Versus State of U.P. reported in 1991 UPTC 585. Commissioner of Trade Tax thereafter, moved an application under section 22 of the Act before the Tribunal on the ground that Section 3-AAAA of the Act has been re-introduced by the Ordinance No.45 of 1991 w.e.f. 1.4.1974 and, therefore, the order should be rectified and the tax on purchases of coal under section 3-AAAA of the Act be levied. Tribunal by the impugned order rejected the application.

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

Learned Standing Counsel submitted that subsequently, the ordinance was substituted by Act. No.28 of 1991 by which Section 3-AAAA of the Act has been introduced w.e.f. 1.4.1974. He further submitted that the decision of this Court in the case of Pioneer Tanneries and Glue Works Versus State of U.P (supra) has been overruled by the Apex Court in the case of Hotel Balaji and others Versus State of Andhra Pradesh reported in 1993 UPTC 318 and therefore, the order of the Tribunal was liable to be rectified under section 22 of the Act. In support of his contention, he relied upon the decision of this Court in the Case of M/S Hindustan Bone Mills Pvt. Ltd. Versus Commissioner of Trade Tax reported in 2005 UPTC 886. I find force in the argument of the learned Standing Counsel. Once the Section 3-AAAA of the Act has been introduced w.e.f. 1.4.1974 in the statute by U.P. Act No.28 of 1991 and the decision of this Court in the case of Pioneer Tanneries and Glue Works Versus State of U.P (supra) has been overruled by the Apex Court in the case of Hotel Balaji and others Versus State of Andhra Pradesh (supra), the order of the Tribunal deleting the tax under section 3-AAAA of the Act on the basis of the decision of Pioneer Tanneries and Glue Works Versus State of U.P (supra) is rectifiable under section 22 of the Act. In the circumstances, the order of the Tribunal is liable to be set aside.

In the result, revision is allowed. Order of the Tribunal dated 17th February, 1995 is set aside and the matter is remanded back to the Tribunal to decide the application under section 22 of the Act afresh in the light of the decision of this Court in the Case of M/S Hindustan Bone Mills Pvt. Ltd. Versus Commissioner of Trade Tax reported in 2005 UPTC 886.

Dated.29.09.2005.

VS.


Copyright

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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