High Court of Judicature at Allahabad
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The Commissioner Trade Tax, U.P., Lko. v. S/S Dhureji Chemicals Pvt. Ltd. - SALES/TRADE TAX REVISION No. 750 of 1999  RD-AH 12102 (24 July 2006)
Court no. 43
Trade Tax Revision no. 750 Of 1999.
The Commissioner, Trade Tax, U. P. Lucknow..... Revisionist.
M/S Dhureji Chemicals Pvt. Ltd., Noida. ... Opp. Party.
Hon'ble Rajes Kumar, J.
Present revision under section 11 of the U.P. Trade Tax Act (hereinafter referred to as the "Act") is directed against the order of the Tribunal dated 10th April, 1999 relating to the assessment year, 1991-92 under the Central Sales Tax Act.
Dealer/opposite party (hereinafter referred to as "Dealer") was carrying on the business of Chemicals. The dispute relates to the sales made through M/S Chemical Distributor of India at Delhi (hereinafter referred to as the "CDI"). The dispatch of the goods from the Factory, Noida to CDI had been claimed as a stock transfer while the Assessing Authority on the basis of materials found at the time of survey dated 13.2.1992 made by the STO (SIB) had concluded that at the time of dispatch of goods from Factory, the dealer was aware about the order and dispatch was in pursuance thereof and thus, it was inter-State sales and not the stock transfer. Various documents seized at the time of survey have been relied upon and referred therein. Dealer filed appeal before the Deputy Commissioner (Appeals). Appeal has been partly allowed. Claim of stock transfer and the sale through the CDI as a Commission Agent had been accepted. The Commissioner of Trade Tax filed appeal before the Tribunal. In the grounds of appeal which is filed alongwith the Supplementary affidavit, findings recorded by the First Appellate Authority has been challenged and the material found at the time of survey dated 13.02.1992 have been referred and on that basis, it is, submitted that the dispatch of the goods from Factory was the inter-State sales. The Tribunal vide its impugned order, rejected the appeal.
Heard learned Counsel for the parties.
Learned Standing Counsel submitted that the Tribunal though has referred some of the materials found at the time of survey dated 13.2.1992, but while recording the findings, such materials have not been considered and the appeal has been dismissed.
I have perused the order of Tribunal and the authorities below. The Assessing Authority had rejected the claim of stock transfer on the basis of documents found at the time of survey dated 13.2.1992. The First Appellate Authority has dealt with those materials in detail. The finding and view of First Appellate Authority have been challenged by the Department in the grounds of appeal. The Tribunal in its order has referred some of the materials found at the time of survey dated 13.2.1992, but while recording the finding, such materials have not been considered and no finding in respect of those materials have been recorded. Thus, the order of the Tribunal is vitiated and is liable to be set aside. The matter requires reconsideration.
In the result, revision is allowed. The order dated 10.04.1999 is set aside. The Tribunal is directed to decide the Appeal no. 447 of 1994 for the assessment year 1991-92 under the Central Sales Tax Act Commissioner of Trade Tax versus M/S Dhureji Chemicals Pvt. Ltd. afresh after giving proper opportunity of hearing to both the parties. The Tribunal is further directed to consider the record it's finding in respect of materials found at the time of survey-dated 13.2.1992, which has been made basis for rejection of claim of stock transfer. There shall be no order as to costs.
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