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M/S Agarwal Glass Works, Etah v. The Commissioner Trade Tax, U.P. - SALES/TRADE TAX REVISION No. 28 of 1996  RD-AH 262 (27 January 2005)
TRADE TAX REVISION NO.28 OF 1996
M/s Agrawal Glass Works, Etah. ....Applicant
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 "Act") is directed against the order of Tribunal dated 08.11.1995 for the assessment year 1991-92.
It is alleged that the applicant was engaged in the manufacturing and sales of glass bottles. During the year under consideration, applicant had purchased coal for Rs.12,25,655.98p. and out of which disclosed the use of coal of Rs.8,01,425.98p. in the manufacturing of bottles and the sale of coal of Rs.2,85,728/-. Applicant had also purchased glass for Rs.2,47,045.81p. and had shown the use of glass of Rs.2,75,534.81p. It is explained that manufacturing of glass was done through Sri Genda Lal, contractor for which manufacturing account was maintained, which was produced at the time of assessment. It was also explained that at the time of survey coal register and the manufacturing account were produced before the Industry Department for verification, in which use of coal and manufacturing of bottles was shown. However, on the basis of survey dated 29.12.1991 made by the Sales Tax Officer (SIB) in which chaukidar was present and production was found closed. It has been inferred that during the year under consideration, applicant had not manufactured glass bottles but have sold the coal and accordingly, estimated the turn over of imported coal at Rs.8,50,000/-, apart from the turn over of coal disclosed by the applicant. First appeal filed by the applicant was allowed and the order of the assessing authority was set aside and the disclosed turn over was accepted. Commissioner of Trade Tax filed the appeal before the Tribunal. Tribunal by the impugned order set aside the order of first appellate authority and restored the order of the assessing authority.
Heard learned counsel for the parties.
Learned counsel for the applicant submitted that applicant unit was registered with the Industry Department and the coal have been purchased on the basis of the allotment of the Industry Department. He submitted that the consumption of coal and the manufacturing were under the control of the Industry Department and manufacturing register have been produced before the Industry Department for verification, in which no defect was found, in as much as at some places they were signed. It is submitted that at the time of survey only chaukidar was present and no responsible person was present and hence the facts mentioned in the survey report can not be relied upon against the applicant. He further submitted that it is the case of reversal of the order of first appellate authority and therefore, it was incumbent on it to advert to the findings recorded by the first appellate authority and set aside the same. Learned Standing Counsel relied upon the order of the Tribunal.
I have perused the order of Tribunal and the authorities below.
In the case of reversal of the order of first appellate authority, Tribunal should advert to the findings recorded by the first appellate authority. Perusal of the order of Tribunal shows that the Tribunal has not adverted and set aside the findings recorded by the first appellate authority. First appellate authority had observed that the sale by the applicant was certified by the Industry Department and the coal register and manufacturing register has been time to time verified by the Industry Department. Therefore, the certificate given by the Industry Department about the consumption of coal can not be rejected. First appellate authority further held that against the sale of bottles, payments were received through bank and the name of the purchaser have also been given. First appellate authority further observed that the manufacturing has been got done through contractor, Sri Genda Lal, therefore, there was no need to maintain separate labour register. It was also observed that the godown was inside the factory. Accordingly, first appellate authority held that there was no justification for estimating the sale of coal. Perusal of the order of Tribunal shows that the aforesaid findings recorded by the first appellate authority have not been considered and adverted. In the circumstances, matter requires reconsideration by the Tribunal.
In the result, revision is allowed. Order of tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh.
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