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THE COMMISSIONER OF TRADE TAX UP versus S/S JAI SHIV SHANKER BRICK FIELD

High Court of Judicature at Allahabad

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The Commissioner Of Trade Tax Up v. S/S Jai Shiv Shanker Brick Field - SALES/TRADE TAX REVISION No. 2479 of 2004 [2006] RD-AH 15994 (13 September 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.22

TRADE TAX REVISION NO.2479 of 2004.

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

Versus

S/S Jai Shiv Shanker Brick Field, Agra.      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 24th May, 2004 relating to the assessment year, 1993-94.

Dealer/Opposite party (hereinafter referred to as "Dealer") was engaged in the business of manufacture and sales of bricks. An ex-parte assessment ordern  dated 22nd March, 1997 was passed inasmuch as the dealer could not appear before the assessing authority. Dealer has neither produced the books of account nor produced any document in support of its disclosed turnover. Dealer filed appeal before the Deputy Commissioner (Appeals), Trade Tax, Agra. Deputy Commissioner (Appeals), Trade Tax, Agra vide order dated 4th May, 1999 allowed the appeal in part. It appears that before the appellate authority, dealer claimed that three lacs bricks  have been used in the construction of the house and in support of which a certificate of Smt. Dharmwati Devi Corporator, Ward No. 26, Nagar Nigam, Agra and Sri Ajay Sharma, Architect 20/32, Sirki Mandi, Agra were produced. On the basis of these two certificates, claim of used three lacs bricks used in the construction of the house have been accepted some relief has also been granted in respect of production and selling rate of bricks. Tribunal has confirmed the order of the first appellate authority in appeal filed by the Commissioner of Trade Tax.

Heard Sri B.K. Pandey, learned Standing Counsel and Sri Alok Kumar, learned counsel for the dealer.

Learned Standing Counsel submitted that before the assessing authority, dealer had not made any claim that three lacs bricks had been used in the construction of the house. For the first time, claim has been made before the appellate authority. He further submitted that the first appellate authority has illegally allowed the claim on the basis of two certificates filed by the dealer without giving opportunity to the assessing authority and without any enquiry in this regard. He further submitted that the first appellate authority has reduced the production and selling rate without any basis. Tribunal has also illegally affirmed the order of the first appellate authority.

Sri Alok Kumar, learned counsel for the dealer submitted that perusal of the order of the Tribunal shows that no such objection has been taken in the grounds of appeal filed by the Commissioner of Trade Tax, therefore, the argument advanced by the learned Standing Counsel cannot be accepted.

Having heard the learned counsel for the parties, I have perused the order of the Tribunal and the authorities below.

I find substance in the argument of the learned Standing Counsel. Admittedly, the dealer could not appear before the assessing authority and could not produce any books of account and has also not made any claim that three lacs bricks have been used in the construction of the house. For the first time, dealer had made the claim that three lacs bricks have been used in the construction of the house and in support of such claim, certificates of Corporator and Architect was filed. Perusal of the order of the first appellate authority does not reveal that these two certificates have been filed along with application under section 12-B of the Act. It is also not clear that any opportunity has been given to the assessing authority to rebut these two documents. In this view of the matter, first appellate authority has erred in allowing the claim of three lacs bricks claimed to have been used in the construction of the house, merely on the basis of the certificates of Corporator and the Architect. Tribunal without giving any reason affirmed the order of the first appellate authority. It may be mentioned here that the entire order of the first appellate authority was subject matter of dispute before the Tribunal and, therefore, the Tribunal ought to have examined each and every aspect of the order of the first appellate authority. Tribunal without assigning any reason has confirmed the order of the first appellate authority, which is wholly unwarranted. In the circumstances of the case, order of the Tribunal and the first appellate authority are liable to be set aside and in the interest of justice, the matter is remanded back to the assessing authority to pass assessment order afresh after giving opportunity to the dealer in accordance to the law.

In the result, revision is allowed. The order of the Tribunal and the first appellate authority are set aside and the matter is remanded back to the assessing authority to pass assessment order afresh.

Dated.13.09.2006.

VS.


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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