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THE COMMISSIONER, TRADE TAX UP LKO. versus S/S BANARSIDAS ASHOK KUMAR

High Court of Judicature at Allahabad

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The Commissioner, Trade Tax Up Lko. v. S/S Banarsidas Ashok Kumar - SALES/TRADE TAX REVISION DEFECTIVE No. 1504 of 1998 [2005] RD-AH 6301 (23 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.55

TRADE TAX REVISION NO. (1504) Of 1998.

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

Vs

M/S Banarasi Das Ashok Kumar, Mathura.     .... Opp. Party.

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "the Act") is directed against the order of Tribunal dated 09.03.1998 relating to the assessment year 1989-90 under the U. P. Trade Tax Act.

During the year under consideration, Dealer/opposite party (hereinafter referred to as "the dealer") claimed to have made purchases of Food grain and Oil-seed on behalf of Ex-U.P. Principal in the course of interstate purchases from registered dealer and issued Form 3-C (1).  The Assessing Authority had rejected the claim of the dealer on the ground that the purchases were made in a composite form and thereafter, they were despatched outside the State at its convenient.  It has been further held that the dealer had issued Form 3-C (1), therefore, in view of Section 12-A of the Act, it was liable to tax on the purchases.  Dealer filed appeal before the Deputy Commissioner (Appeals), which was allowed.  Deputy Commissioner (Appeals) observed that it was not in dispute that the purchases have been made on behalf of Ex- U. P. Principal and the same had been despatched to the Ex- U. P. Principal.  It has been further held that it was necessary to identify that which goods is being purchased for Ex- U. P. Principal.  It has been further held that merely because, Form 3-C (1) was issued, nature of transaction was not changed.  Commissioner of Trade Tax filed appeal before the Tribunal.  Tribunal vide impugned order rejected the appeal.

Heard learned Counsel for the parties.

Learned Standing Counsel submitted that the Tribunal has only referred the argument of State Representative and learned Counsel of the dealer, but has not given its own finding while affirming the order of the First Appellate Authority.  He submitted that the Tribunal has not considered the reasons given by the Assessing Authority for rejecting the claim of purchases in the course of interstate..  He submitted that the Assessing Authority had held that the purchases were made in a composite form and thereafter as per the convenient, goods have been despatched outside the State.  According to him, on these facts, purchases can not be said to be in the course of interstate purchases in view of law laid down by the Apex Court in the case of C.S.T Vs. M/S Bakhtawar Lal Kailash Chandra reported in 1992 UPTC page 971.   He further submitted that the view of First Appellate Authority that it is not necessary that while making the purchases, goods should be identified as to which, goods was purchased for Ex- U. P. Principal, is incorrect and contrary to the law laid down by the Apex Court.  Learned Counsel for the dealer relied upon the order of Tribunal.

I have perused the order of Tribunal and the authorities below.  

I find substance in the argument of learned Standing Counsel.  Perusal of order of Tribunal shows that the Tribunal while affirming the order of First Appellate Authority has not given any reason.  Tribunal has not considered the reasons given by the Assessing Authority for rejecting the claim of purchases made on behalf of Ex- U. P. Principal in the course of interstate purchases.  In the case of C.S.T Vs. M/S Bakhtawar Lal Kailash Chandra (supra), Apex Court held that if the purchases are made on the basis of order or instruction of Ex-U. P. Principal and thereafter, same is despatched outside the State of U. P. at the destination of Ex- U. P. Principal and both purchases and despatch are integrally connected said purchases are held to be in the course of interstate purchases.  In this view of the matter, there should be a link between the purchases of goods and despatch of the goods.  Purchases should be made on the instruction of Ex-U. P. Principal and at the time of purchases it should be know that which good is being purchased for which Ex- U. P. Principal and the same should be despatched outside the State of U. P. at the destination of the Ex- U.P. Principal.  Since the Tribunal has not examined the matter in the light of law laid down by the Apex Court and has not examined the facts of the case, it would be appropriate to remand back the case to the Tribunal to decide the appeal afresh.  Tribunal is directed to examine the nature of transactions and decide the appeal in the light of law laid down by the Apex Court in the case of C.S.T Vs. M/S Bakhtawar Lal Kailash Chandra (supra).

In the result, revision is allowed.  Order of Tribunal dated 09.03.1998 is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in the light of observations made above.

Dt:23.11.2005.

MZ/-


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