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THE COMMISSIONER TRADE TAX U.P. LUCKNOW versus HARI FERTILIZER SAHUPURI

High Court of Judicature at Allahabad

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The Commissioner Trade Tax U.P. Lucknow v. Hari Fertilizer Sahupuri - SALES/TRADE TAX REVISION No. 1009 of 1999 [2006] RD-AH 12099 (24 July 2006)

 

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.43

TRADE TAX REVISION NO.1009 OF 1999

The Commissioner of Trade Tax U.P., Lucknow.       ....Applicant

Versus

S/S Hari Fertilizers, Varanasi.        .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 28.04.1999 for the assessment year 1992-93 under Central Sales Tax Act.

Dealer/opposite party (hereinafter referred to as "Dealer") was carrying on the business of manufacture and sale of chemical fertilizer and chemical.

Heard Sri U.K.Pandey, learned Standing Counsel and Sri R.P.Ginodia, learned counsel for the dealer.

Though in the memo of revision, question relating to the rejection of books of account has been raised but at the time of argument learned Standing Counsel confined his argument on the question of acceptance of exemption on the stock transfer only. Perusal of the assessment order shows that the dealer has given three different figures of stock transfer on three different dates. Initially dealer had disclosed stock transfer to the extent of Rs.2,90,31,632/-. Thereafter, on 28.03.1997 it was disclosed at Rs.2,86,32,481.50p. and on 30.03.1987 it was disclosed at Rs.2,60,31,125.15p. Assessing authority observed that the dealer could not reconcile the aforesaid figures. However, the exemption on the stock transfer of Rs.2,52,39,853/- was allowed. In first appeal dealer has admitted the stock transfer to the extent of Rs.2,69,24,610.43p. and tried to explain the difference in the figures disclosed before the assessing authority. It was explained that in the month of January, 1983 the turn over of Amonia Cloride at Rs.3,99,000/- had been disclosed twice. First appellate authority has also referred that before the assessing authority  a list of Rs.2,68,31,125.15p. was filed and the figures relating to 5 dealer has been wrongly shown. First appellate authority however, accepted the explanation and stated that in the list figure disclosed by the dealer was correct. First appellate authority however, has neither referred the explanation nor has given any detail of reconciliation. Commissioner of Trade Tax filed appeal before the Tribunal. Tribunal rejected the appeal and confirmed the order of the first appellate authority. Tribunal observed that the dealer had disclosed stock transfer at Rs.2,86,32,481.50 p. and in respect of which 189 Form-F were filed. However, books of account have not been produced for verification nor the total of the list was made. Tribunal, however, observed that the explanation of the dealer appears to be proper. Learned Standing Counsel submitted that though the Tribunal has recorded the finding that no books of account has been produced for verification but has confirmed the order of the first appellate authority accepting the stock transfer. Learned Standing Counsel further submitted that at the different stages, dealer had given different figures of the stock transfer and such figures could not be reconciled. Neither first appellate authority nor the Tribunal has referred the explanation given by the dealer reconciling the details and without any basis accepted the explanation.  Learned counsel for the dealer submitted that the observation of the Tribunal that the books of account has not been produced for verification nor the total of the list was made appears to be typographical error.  He submitted that the books of account have been produced before the assessing authority and the same was duly verified and, thereafter, benefit of Rs.2,52,39,853/- was allowed.  He submitted that the difference in the figures has also been reconciled and therefore, the order of Tribunal is liable to be sustained.

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

In my opinion, order of the Tribunal is not sustainable. Tribunal has not considered the explanation of the  dealer before coming to the conclusion that it is proper. Perusal of the assessment order as well as order of the first appellate authority shows that at different stages, different figures of the stock transfer  have been given. The explanation reconciling those figures has not been referred by the first appellate authority and by the Tribunal. It is also not clear whether the books of account has been produced for verification to reconcile the difference or not. In this view of the matter, the view of the Tribunal that the explanation is proper and acceptable is erroneous. Tribunal is the last Court of fact, ought to have refer and consider the explanation before coming to the conclusion that the explanation is proper and acceptable. Tribunal has not discharged its obligation in accordance to the law.  Thus, the order of Tribunal is liable to be set aside.

In the result, revision is allowed in part. Order of Tribunal dated 28.04.1999 in appeal no.428 of 1994 for the assessment year 1982-83 (Central) is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in the light of the observation made above.

Dt.24.07.2006

R./


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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