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M/S MADAN BRICK FIELD versus TRADE TAX TRIBUNAL, KANPUR BENCH IIND, KANPUR & OTHERS

High Court of Judicature at Allahabad

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M/S Madan Brick Field v. Trade Tax Tribunal, Kanpur Bench Iind, Kanpur & Others - SALES/TRADE TAX REVISION No. 226 of 1999 [2005] RD-AH 6722 (1 December 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.226 OF 1999

M/s Madan Brick Field. ....Applicant

Versus

The Trade Tax Tribunal, Kanpur Bench

IInd, Kanpur and others.   ....Opp. Parties

***************

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 23.02.1999 for the assessment year 1982-83.

Heard Shri Mahesh Mangli, learned counsel for the applicant and learned Standing Counsel.

Learned counsel for the applicant submitted that proceedings under section 21 of the Act was initiated by the assessing authority on the basis of the survey. The said proceeding was quashed in appeal. Thereafter, further proceeding under section 21 of the Act was initiated in the year 1988 on the same ground and order under section 21 of the Act was passed. Applicant filed appeal before the Joint Commissioner (Appeals), which was allowed vide order dated 29.06.1989. First appellate authority held that the proceeding under section 21 of the Act was barred by limitation and it has been further held that the service of the notice was not proper. The other point was not adjudicated by the first appellate authority. Commissioner of Trade Tax filed appeal before the Tribunal. Tribunal by the impugned order allowed the appeal and remanded back the matter to the first appellate authority to decide the appeal on merit. Tribunal held that the initiation of the proceeding under section 21 of the Act was not barred by limitation, inasmuch as the limitation has been extended by amending Act relying upon the decision of the Apex Court in the case of Additional Commissioner (Legal) and another Vs. Jyoti Traders and another, reported in 112 STC, 277. Tribunal also held that the notice was properly served on 18.03.1988 on Sri Anup Kumar Gupta, one of the partner of the firm.  Learned counsel for the applicant is not able to show any illegality in the order of Tribunal. In fact he has not challenged the view taken by the Tribunal in the appeal, however, argued that before the first appellate authority, applicant has also challenged the order of the assessing authority on the ground that the subsequent initiation of the proceeding under section 21 of the Act on the same material was not justified and thus, the Tribunal ought to have considered this aspect of the matter. Since the Tribunal has not considered this aspect of the matter, order of the Tribunal is erroneous.  I do not find any substance in the argument of learned counsel for the applicant. Tribunal has adjudicated only those issues, on which first appellate authority has held the proceeding under section 21 of the Act, illegal. Tribunal has remanded back the matter to the first appellate authority to decide the appeal afresh on merit. In this view of the matter, it is open to the applicant to raise the issue on merit before the first appellate authority.  The applicant is no debarred in raising the issue, namely, that the subsequent initiation of proceeding under section 21 of the Act on the basis of the same material was not justified.

For the reasons stated above, revision stand dismissed.

Dt.01.12.2005

R./


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