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M/S Shitla Prasad & Company v. The Commissioner, Trade Tax, U.P.Lucknow - SALES/TRADE TAX REVISION DEFECTIVE No. 1613 of 1998 [2006] RD-AH 797 (12 January 2006)


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Court no. 55

TRADE TAX REVISION No.  (1613) of 1998.

M/S Shitla Prasad & Company, Allahabad. ...Applicant.


The Commissioner of 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 30th May, 1998 relating to the assessment years 1985-86.

The applicant was engaged in the business of manufacture and sale of bricks.

Heard learned counsel for the parties.

Learned counsel for the applicant raised three disputes, one relating to the capacity of the kiln, second relating to firing period and third relating to rate of tax. Learned counsel for the applicant submitted that the capacity of the kiln was 3.70 lacs while it has been illegally estimated at 5.5 lacs bricks. He further submitted that the kiln operated in the first season for 25 days i.e. from 1.4.1985 to 16.4.1985 and 18.5.1985 to 28.5.1985 and in second season from 31.1.1986 to 10.2.1986 and from 22.3.1986 to 31.3.1986 for 20 days, while the assessing authority estimated the firing period at 177 days which has been reduced to 168 days in first appeal. Tribunal has confirmed the estimate of 168 days and confirmed the estimate of average selling rate at Rs.350/- per thousand bricks, which according to the counsel for the applicant is excessive. Learned counsel for the applicant submitted that there is no material to dispute the closure of the firing from 17.4.1985 to 17.5.1985 in the first season. He submitted that at the time of survey-dated 22.5.1985, no adverse material was found to  suggest that the firing was not closed during the period 17.4.1985 to 17.5.1985.

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

In normal course, kiln operates from November to June. In case if the firing is closed in between, it is on the applicant to establish the closure of the firing. No evidence has been adduced by the applicant to show that the kiln was closed from 17.4.1985 to 17.5.1985. To the contrary, at the time of survey dated22.5.1985, the kiln was found running continuously. Nothing has been suggested at the time of survey that the kiln was closed from 17.4.1985 to 17.5.1985. Thus, the claim of the dealer that the kiln was closed from 17.4.1985 to 17.5.1985 has been rightly rejected. It was claimed that the firing was closed from 11.2.1986 to 21.3.1986 while at the time of survey-dated 21.2.1986, the firing was found going on. Applicant is not able to place any other case in which lesser selling rate has been fixed. Finding of the Tribunal in this regard is finding of fact and no interference is called for.

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




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