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M/S R.D.Brick Klins,Bharpura v. Commissioner Of Trade Tax Up - SALES/TRADE TAX REVISION No. 537 of 1996 [2005] RD-AH 775 (17 March 2005)


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Court no.55


M/S R.D. Brick Kiln, Etah.   Applicant


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 17th June, 1992 relating to the assessment year, 1987-88.

Applicant was engaged in the business of manufacture and sale of bricks. During the year under consideration, applicant had operated the kiln for 15 days and disclosed the bricks manufactured at 2,20,000 bricks. Assessing authority rejected the firing period and estimated at 45 days and production at 6,42,857 bricks. First appellate authority allowed the appeal and estimated the firing period at 26 days and production at 3,71,500 bricks. First appellate authority also accepted the claim of using 94,000 bricks in its own contract business. Against the order of the first appellate authority, applicant as well as Commissioner of Trade Tax filed appeals before the Tribunal. Tribunal vide impugned order rejected the appeal of the applicant and partly allowed the appeal of the Commissioner of Trade Tax.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that the Tribunal has erred in enhancing the firing period to 45 days and production of bricks to 6,42,857 bricks as estimated by the assessing authority. He submitted that dispute is mainly relating to the firing period for the first season. In the first season, applicant has operated kiln from 23rd May, 1987 to 28th May, 1987 for six days which has been accepted by the first appellate authority. He submitted that the assessing authority enhanced the firing period on the basis of the surveys dated 21.4.1987 and 28. 5,1987. It is stated that at the time of survey dated 21,4,1987 kiln was found filled with kachcha bricks and 2 lacs kachcha bricks were found in stock while at the time of survey dated 28th May, 1987, there was no stock of kachcha bricks. On the basis of these fact it has been inferred that entire kachcha bricks must have been produced and accordingly firing period was enhanced. Learned counsel for the applicant submitted that it was explained that kachcha bricks were destroyed by the water of nulkup and at the time of survey dated 28th May, 1987, it was found that the firing was started from 23rd May, 1987 and there is no contrary material on record. First appellate authority on the basis of survey dated 28th May, 1987 accepted the firing period. Learned Standing Counsel relied upon the order of the Tribunal.

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

I find force in the argument of the learned counsel for the applicant. There appears to be no reason to interfere with the order passed by the first appellate authority. At the time of the survey dated 28th May, 1987, it was found that the firing was started from 23rd May, 1987. First appellate authority has also considered the stock position of pucca bricks and accordingly, accepted the firing period disclosed by the applicant from 23rd May, 1987 to 28th May, 1987. I do not find any reason to disbelieve the firing period of the first season when at the time of survey dated 28th May, 1987, it was found that the firing period was started from 23rd May, 1987 and to the contrary there is no material on record.

In the result, revision is allowed. Order of the Tribunal is set aside and the order of the first appellate authority is restored.

Dated. 17.03.2005.



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