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M/S Swami Ent Udyog, Pegoopur Anantram Aurraiya v. The Commissioner Trade Tax U.P. Lucknow - SALES/TRADE TAX REVISION No. 2540 of 2005 [2005] RD-AH 6489 (28 November 2005)


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M/S Swami Ent Ydyog, Aurraiya. ....Applicant


The Commissioner 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 30.06.2005 for the assessment year 1997-98.

Applicant was engaged in the business of manufacture and sale of bricks. The rejection of books of account is not in dispute. During the year under consideration applicant had disclosed firing period from 05.04.1997 to 09.04.1997 and 16.05.1997 to 23.05.1997 for 13 days, which had been enhanced to 55 days by way of best judgment assessment. First appellate authority has accepted the firing period. Against the acceptance  of the firing period, Commissioner of Trade Tax filed appeal before the Tribunal. Tribunal held that the at the time of survey dated 08.04.1997, 4.5 ghati was found filled with pucca bricks and the opening stock of rora 2,04,500 was only shown and it was not possible to bake 4.5 ghati in four days. Tribunal arrived to a conclusion that the firing period disclosed by the applicant was wrong and has remanded back the matter to the first appellate authority to determine the firing period afresh. Applicant has also claimed to have distributed 4,61,000 bricks amongst the partners as on 01.10.1997 and in support of its claim filed certificate of Gram Pradhan, two certificates of two main partners, purchase voucher of cement and iron and has also stated that the information of the distribution of the bricks have been given by the registered post. Assessing authority had not accepted the claim on the ground that at the time of survey nothing had been told about the distribution of the bricks and the certificate, which have been furnished were not relating to all the partners.  First appellate authority has also not accepted the claim. Tribunal too has rejected the claim. Tribunal observed that the applicant has not given proper evidence for the distribution of the bricks.

Heard learned counsel for the parties.

Learned counsel for the applicant has only raised the dispute with regard to the firing period and the distribution of the bricks. He submitted that the Tribunal has not considered that there were 3,45,000 pucca bricks inside the kiln as opening stock and if this pucca bricks as to be considered, 4.5 ghati filled with pakki bricks found at the time of survey dated 08.04.1997 stand justified. He further submitted that for the distribution of 4,61,000 bricks certificate of Gram Pradhan, affidavit of two partners, purchase voucher of cement and iron  were filed and information was also given by the registered post but these evidence have not been considered by the Tribunal. Learned Standing Counsel relied upon the order of Tribunal. In my opinion, order of the Tribunal on the aforesaid two issues are not sustainable. Tribunal being the last Court of fact can determine the firing period at its own stage. There appears to be no reason for remanding back the case to the first appellate authority for the determination of the firing period. Tribunal has not considered that in the opening stock 3,45,000 bricks was inside the kiln. Thus, the matter requires reconsideration by the Tribunal. Tribunal should also consider the various evidences adduced by the applicant in support of its claim for the distribution of 4,61,000 bricks, which have been referred hereinabove and record its finding in this regard.

In the result, revision is allowed. Order of the Tribunal dated 30.06.2005 is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in the light of the observations made above. It is made clear that the order of the Tribunal on the other issues stands confirmed.




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