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M/S Jai Durgey Bricks Field v. Commissioner Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 1618 of 2006 [2006] RD-AH 20126 (28 November 2006)


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M/s Jai Durgey Bricks Field, Pratapgarh.       ....Applicant


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 "Act") is directed against the order of Tribunal dated 25.07.2006 relating to the assessment year 2000-01.

Applicant was engaged in the business of manufacture and sales of bricks. Applicant had operated the kiln from 01.04.2000 to 14.04.2000 for 14 days.  Assessing authority had estimated the firing at 30 days and estimated the production at 4.80 lacs bricks. The claim of bricks given to Mandir/Masjid has been partly allowed and the claim for the bricks used in the construction of his own house had been rejected. Matter went to the Tribunal. Tribunal has upheld the estimate of the firing period at 30 days and the rejection of claim of donation of bricks to Mandir/Masjid and for personal use on the ground that no proper evidence has been submitted. It has been held that the applicant had not furnished any details for the purchase of cement, iron and sand etc. and no receipt in this regard was furnished. Tribunal, however, reduced the average selling rate for Rs.1,250/- per thousand bricks to Rs.1,000/- per thousand bricks.

Heard learned counsel for the parties.

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

Learned counsel for the applicant submitted that the estimate of firing period at 30 days is arbitrary and without any basis and   Tribunal has also erred in not giving the benefit of 2.5 lacs bricks given in donation to Mandir/Masjid and 2.10 lacs bricks used for personal purposes while the affidavit in this regard was furnished.

Best judgment assessment is not in dispute. At the time of survey dated 14.04.2000 kiln was found running. Pathai, Bharai, Phukai and nikasi were going on. Nothing has been informed to the surveying authority about the closure of firing after two days. Neither any information for the closure from 14.04.2000 was given nor any evidence has been adduced in this regard. Therefore, the estimate of the firing period for 30 days can not be said to be unjustified. Learned counsel for the applicant has referred the decision of this Court in the case of M/s Chawla Brick Field, Allahabad Vs. Commissioner of Sales Tax, U.P., Lucknow, reported in 1987 UPTC, 1377 in which this Court held that in the absence of the information for the temporary closure of the firing period, the claim of the closure can not be denied. It is true that there is no specific provision for giving the information about the closure of the firing but normally kiln operates form January to June and if the applicant claims that the firing has been closed during the aforesaid period, burden lies upon the dealer to establish its claim. In the present case, no evidence has been adduced to prove the closure  of the firing from 14.04.2000. To the contrary at the time of survey dated 12.04.2000 pathak, bharai, phukai and nikasi were going on  and nothing has been indicated about the closure of the firing from 14.04.2000. The claim of bricks given on donation to Mandir/Masjid and use of 2.10 lacs bricks for personal use in the construction of his own house has also rightly been rejected. Applicant is not able to show from the record that how the bricks have been given to the Mandir/Masjid and taken for personal use. No information was given to the assessing authority while giving these bricks on donation to Mandir/Masjid and while taking these bricks for the use in the construction of his house. Affidavit which was filed was for self serving purpose and can not be relied upon in the absence of any evidence to support the claim.  

In the result, revision fails and is accordingly, dismissed.




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