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Om Granite, Kabrai, Hamirpur v. Commissioner Of Trade Tax, U.P., Lucknow - SALES/TRADE TAX REVISION No. 270 of 2003  RD-AH 13652 (18 August 2006)
Court no. 43
Trade Tax Revision no. 270 Of 2003.
Om Granite, Kabrai, Hamirpur. ... Revisionist.
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 the "Act") is directed against the order of the Full Bench, Trade Tax Tribunal, Lucknow dated 26th, December, 2002 arising from the proceeding under Section 4-A of the Act.
Applicant claimed to have established a new Unit for manufacture of Grit in the year 1990. The purchase of raw-material was made on 12.1.1990 and first sale was made on 31.3.1990. Exemption application was rejected on 24.11.1992. Applicant filed a review application, which was rejected on 05.12.1995. Against the said order, applicant filed appeal before the Tribunal. The Tribunal by the order dated 12.10.1999, allowed the appeal and remanded back the matter to the Divisional Level Committee to decide the matter afresh after giving proper opportunity of hearing to the applicant. The Divisional Level Committee again rejected the application vide order dated 08.10.2001. Applicant filed appeal before the Tribunal, which has been rejected by the impugned order.
Heard learned Counsel for the parties.
The Tribunal has rejected the application mainly on the ground that at the time of joint inspection made on 20.11.1990, 8 Motors consisting of 1of 50 HP, 1 of 40 HP, 6 of 05 HP were found and in a further joint inspection made on 29.8.1995, 10 Motors were found consisting of 1 of 35 HP, 1 of 50 HP, 1 of 7.5 HP, 2 of 05 HP, and 5 of 03 HP. According to the Tribunal, some of the purchase vouchers of Motors were not produced and some of the purchase vouchers of Motors, were found faulty. The Tribunal further held that under the proviso to Explanation-2 (a) of Section 4-A (6) of the Act, initial burden to proof lies on the Unit, which was not properly discharged.
Learned Counsel for the applicant submitted that some of the Motors were taken on lease in respect of which, rent receipts were produced and in respect of some of the Motors, purchase vouchers were produced. He submitted that the Tribunal without any basis has observed, that the purchase vouchers were found faulty. He further submitted that the proviso to Explanation -2(a) of Section 4-A (6) of the Act has been introduced by Act no. 26 of 1998 and is applicable to the new Unit established after 27.07.1998 and is not applicable to the Unit of the applicant, therefore, the Tribunal has illegally observed that burden was on the applicant to prove that the machinery, plant, equipment apparatus or Components have not been used, lies upon the Unit which could not be discharged. He submitted that under Section 4-A of the Act as it existed during the relevant time the Unit was disentitled to benefit of exemption as per the Explanation (1) (d) of sub section (6) of Section 4 of the Act, if the machinery was found to have been used or acquired for use in any other Workshop or Factory. He submitted that to reject the claim of exemption, it is necessary to record specific finding that such Motors were used or acquired for use by the Factory or Workshop. In support of his contention, he relied upon the decision in the case of M/S Kediya Electrical Appliances Industries, Varanasi Versus Commissioner of Trade Tax reported in 2001 UPTC page 924. He further submitted that in the case of M/S Progressive Components (Pvt.) Ltd., Agra Versus Commissioner of Trade Tax reported in 2000 UPTC page 131, this Court held that merely because, purchase vouchers of the Motors could not be produced they cannot be presumed to be old and used. Learned Standing Counsel relied upon the order of the Tribunal.
Having heard learned Counsel for the parties and have perused the order of the Tribunal and the authorities below.
In my view, order of the Tribunal is vitiated and liable to be set aside. The Tribunal has not given any basis that why the purchase vouchers produced in respect of the Motors found at the time of survey were faulty. The Tribunal also has not recorded any finding that the Motors were used or acquired for use by any Factory or Workshop, which is necessary to deny the claim of exemption in view of Explanation (1) (d) of sub section (6) of Section 4 of the Act, as held by this Court in the case of M/S Kediya Electrical Appliances Industries, Varanasi Versus Commissioner of Trade Tax (supra). The Tribunal has illegally relied upon the proviso to Explanation -2(a) of Section 4-A (6) of the Act, which has been introduced by Act no. 26 of 1998, and is applicable to the Unit established after 27.7.1998. Thus, the Tribunal is directed to decide the appeal afresh after giving proper opportunity of hearing to the parties. The Tribunal may also examine the case of the applicant in the light of decision of this Court in the case of M/S Progressive Components (Pvt.) Ltd., Agra Versus Commissioner of Trade Tax (supra).
In the result, revision is allowed. Order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeal no. 139 of 2001 afresh after giving proper opportunity of hearing to the parties. As the matter is quite old, Tribunal is directed to decide the appeal expeditiously preferably within a period of three months from the date of filing of Certified copy of the order, which the applicant shall file within a period of two weeks.
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