High Court of Judicature at Allahabad
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The Commissioner Trade Tax,U.P.Lko. v. M/S, Machal Singh, Bah, Agra - SALES/TRADE TAX REVISION No. 1096 of 1999  RD-AH 11226 (10 July 2006)
TRADE TAX REVISION NO.1096 of 1999
TRADE TAX REVISION NO.1145 of 1999
The Commissioner, Trade Tax, U.P., Lucknow. Applicant
M/S Machal Singh, Agra. Opp.party
Hon'ble Rajes Kumar, J.
Present two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 28th April, 1999 relating to the assessment years, 1993-94 and 1994-95.
Admittedly, dealer opposite party (hereinafter referred to as "dealer") was awarded a contract for the extraction of sand and for its sale. Assessing authority for both the years have passed ex-parte orders and on the basis of the contract money estimated the turnover. In first appeal, the order of the assessing authority for the assessment year 1993-94 has been upheld. However, the appeal for the assessment year 1994-95 has been allowed in part and the turnover has been reduced by Rs. 2 lacs. Against the order of the first appellate authority, dealer filed the appeals before the Tribunal. Tribunal by the impugned order, allowed the appeals in part. Tribunal has estimated the turnover for the assessment year 1993-94 at Rs. 6 lacs and for the assessment year 1994-95 at Rs. 3 lacs. Tribunal held that the dealer was involved in extracting and selling the sand, thus, liable for tax on the turnover of sand. Tribunal further held that the contract money is relevant consideration for the determination of the turnover. Tribunal however, held that the dealer has kept the record of the sand lifted from the river and has submitted its detail to Additional District Magistrate, Agra. It has been also observed that the State Representative, however, could not be able to rebut the contention of the dealer that he has suffered a loss in this contract. Photocopy of the order of the Civil Judge appears to have been filed to show that some miscreants of the vicinity created obstruction in lifting and realizing the royalty. Keeping in view the aforesaid facts, turnover has been estimated.
Heard learned counsel for the parties.
Learned Standing Counsel submitted that no evidence has been adduced by the dealer before the assessing authority as well as before the first appellate authority as referred in the order of the Tribunal. Tribunal has also not given any opportunity to the department to verify the record of the sand lifted from the river and the details submitted to the Additional District Magistrate, Agra and also the order of the Civil Judge filed to show that some miscreants of the vicinity created obstruction in lifting and realizing the royalty. He submitted that since the opportunity has not been given to verify and rebut the aforesaid document, the order of the Tribunal is vitiated.
I find substance in the argument of the learned Standing Counsel.
Perusal of the order of the Tribunal shows that no detail has been referred in the order as to when the sand was lifted as claimed to have been submitted before the Additional District Magistrate, Agra. The detail of the order of the Civil Judge has also not been referred. It appears that no opportunity has been given to the revenue authority to verify the said statement and the documents filed. In view of the aforesaid facts and circumstances, it would be appropriate that the matter may be sent back to the assessing authority to pass the assessment order a fresh after giving proper opportunity of hearing to the dealer. It will be open to the dealer to furnish all the necessary details and evidences in support of the claim.
In the result, both the revisions are allowed. The order of the Tribunal dated 28th April, 1999 is set aside. The matter is remanded back to the assessing authority to pass the assessment orders for the assessment years, 1993-94 and 1994-95 a fresh in accordance to the law after giving proper opportunity of hearing to the dealer.
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