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M/S Ganga Prasad Kashinath Cement & Foodgrain Dealer v. Commissioner Trade Tax, U.P, Lucknow - SALES/TRADE TAX REVISION No. 2707 of 2004 [2005] RD-AH 7421 (13 December 2005)


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Messers Ganga Prasad Kashinath Cement and

Foodgrain Dealer, Jhansi.     ....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 06.12.2004 relating to the assessment year 2001-02.

Applicant was carrying on the business of cement and admitted total and taxable sales at Rs.13,06,240/-. There was closing stock of Rs.37,66,956.67p. The dispute relates to the sale of the closing stock. It was contended that Shri Sanjay Dalmiya, son of Shri Om Prakash Dalmiya was abducted in January, 2000 and due to the threat of the abductors, Shri Om Prakash Dalmiya also left the place and had gone to some unknown place. It was submitted that for some time business was carried on by the servants and thereafter,  it was finally closed on 31.03.2002 and whatever stock was lying was damaged and some of them were stolen away.  On the request of the applicant an enquiry was made by the assessing authority on 01.02.2004. On enquiry Shri Nawab Ali, Chaukidar was present. On enquiry the claim of the applicant was found correct. Statement of Shri Nawab Ali was also corroborated by Shri Shailendra Agarwal, son of Shri Lakhan Lal, resident of Mauranipur, Shri Navin Purvar, son of Shri Gopal Purvar of M/s Ambey Traders, Mauranipur. Assessing authority had accepted the plea of the applicant in part and estimated the turn over of cement at Rs.19 lacs, out of the closing stock of cement. First appeal was allowed in part and the turn over was reduced to Rs.14 lacs. Applicant filed second appeal before the Tribunal. Tribunal has allowed the appeal in part  and reduced the turn over to Rs.8 lacs.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that once it has been accepted that the son of the applicant was abducted in January, 2000 and the proprietor had left to some unknown place and the cement was either damaged or stolen, there was no justification in estimating the sale of cement out of the closing stock in the absence of any evidence of sale.  Learned Standing Counsel relied upon the order of Tribunal.

I find substance in the argument of learned counsel for the applicant. The plea of the applicant that the son of the proprietor was abducted in January, 2000 and the proprietor Shri Om Prakash Dalmiya left the place of business and had gone to some unknown place, was found correct in enquiry made on 01.02.2004.  In the enquiry, it was also found that the cement in the stock were mainly damaged and were also stolen. This plea had also been accepted by the Tribunal and the authorities below. There was no evidence on record that the cement, which was left in stock have been sold and the stock shown was not correct. In the absence of any material of sale of cement out of stock, estimate is wholly arbitrary and without any basis.

In the result, revision is allowed. Order of the Tribunal dated 06.12.2004 is set aside and the turn over of Rs.8 lacs is deleted. Tribunal is directed to pass appropriate order under section 11 (8) of the Act.




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