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M/S Alfa Restaurant v. Commissioner Trade Tax U.P. Lko. - SALES/TRADE TAX REVISION No. 287 of 1999 [2005] RD-AH 6045 (21 November 2005)


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M/s Alfa Restaurant, Meerut. ....Applicant


The 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 26.02.1999 for the assessment year 1991-92.

Applicant was running a restaurant  and was engaged in the business of selling cooked food, ice-cream and cold drinks and disclosed the total and taxable turn over at Rs.10,37,462.77p.  and Rs.9,97,577.36p. respectively. Assessing authority rejected the books of account and estimated the turn over of cooked food at Rs.18,00,000/- and the turn over of ice-cream and cold drinks at Rs.1 lac each and turn over of first purchase of dal and rice at Rs.1 lac.  First appeal filed by the applicant was allowed in part. First appellate authority reduced the turn over of cooked food to Rs.12 lacs, purchase turn over of dal and rice at Rs.70,000/- and deleted the tax on the turn over of ice-cream and cold drinks, which was estimated at Rs.1 lac each by the assessing authority. Applicant as well as Commissioner of Trade Tax filed appeals before the Tribunal. Tribunal by the impugned order  rejected the appeal of the applicant and has partly allowed the appeal of the Commissioner of Trade Tax. Tribunal has upheld the order of the first appellate authority estimating the turn over of cooked food of Rs.12 lacs and purchase turn over of dal and rice at Rs.70,000/-, but has restored the order of the assessing authority estimating the taxable turn over of cold drinks and ice-cream at Rs.1 lac each.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that estimate of taxable turn over of cold drinks and ice-cream  at Rs.1 lac each is unjustified. He submitted that there is no material of any import of cold drinks and ice-cream from outside the State of U.P. and, therefore, the inference of sale of imported ice-cream and cold drinks is not justified. Learned Standing Counsel relied upon the order of the Tribunal.

Admittedly the applicant had not maintained any books of account. It appears that purchase voucher of cold drinks and ice-cream have also not been produced to show that they have been purchased within the State of U.P. Therefore, the initial burden which was on the applicant to prove that cold drinks and ice-cream were purchased within the State of U.P. have not been discharged. However, perusal of the order of the Tribunal shows that no basis has been given for estimating the turn over of cold drinks and ice-cream at Rs.1 lac each. In the circumstances, matter requires reconsideration by the Tribunal. Tribunal is directed to consider the estimate of the turn over of cold drinks and ice-cream afresh.

In the result, revision is allowed in part. Order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh.




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