High Court of Judicature at Allahabad
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Commissioner of Sales Tax, U. P. Lucknow v. S/S Anuj Coal Agency, Ballia. - SALES/TRADE TAX REVISION No. 1738 of 1992  RD-AH 2764 (13 September 2005)
Court no. 55
Sales Tax Revision no. 1738 Of 1992.
Commissioner of Sales Tax, U. P. Lucknow. ...Applicant.
S/S Anuj Coal Agency, Ballia. ... Opposite party.
Hon'ble Rajes Kumar, J.
The present revision under Section 11 of U. P. Sales Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 25.08.1992 relating to assessment year 1990-91 under the U. P. Sales Tax Act
Dealer/opposite party (hereinafter after referred to as "the dealer") was carrying on the business of buying and selling of coal and claimed to be license holder under the Coal Control Order. In the present revision dispute relates to as whether the inward freight was the part of the turnover. Dealer claimed that it was not the part of the turnover, inasmuch as, it had been separately charged in the bill from the customers. First Appellate Authority held that the dealer had not kept any in the order book and had not shown any order received from the purchasers nor any agreement between the purchasers have been shown. It has also been observed that the goods have been imported against Form-31 and it had not been proved that the dealer had acted as a Commission Agent. In Second Appeal, Tribunal allowed the appeal and held that the freight was not the part of the turnover relying upon some of the order of Tribunal.
Heard Counsel for the parties.
Learned Standing Counsel submitted that without adverting to the findings recorded by the First Appellate Authority, Tribunal has illegally held that the freight was not the part of the turnover. He submitted that the dealer had sold coal on principal-to-principal basis to the customers and is not able to show that dealer acted as a Commission Agent of the purchasers. He submitted that merely because freight had been separately charged in the bills, the inward freight can not be excluded from the turnover. In support of his submission he relied upon the law laid down by this Court in the cases of Commissioner of Trade Tax, U. P. Lucknow Vs. Ramapati Tewari Jainath Tewari, Varanasi reported in 2005 UPTC page 76 and Commissioner of Trade Tax Vs. S/S Sharma Coal Co., Azamgarh reported in 2005 NTN (26) page 69. Learned Counsel for the dealer relied upon the order of Tribunal.
I have perused the order of Tribunal and the authorities below. Perusal of order of Tribunal shows that the findings recorded by the First Appellate Authority had not been adverted before the Tribunal. Thus the order of Tribunal is vitiated. The matter is remanded back to the Tribunal to decide the appeal afresh with the direction to consider the findings recorded by the First Appellate Authority and the law laid down by this Court in the cases of Commissioner of Trade Tax, U. P. Lucknow Vs. Ramapati Tewari Jainath Tewari, Varanasi and Commissioner of Trade Tax Vs. S/S Sharma Coal Co., Azamgarh (supra).
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 in the light of observations made above.
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