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Ramesh Kumar v. Commissioner Trade Tax U.P. Lucknow - SALES/TRADE TAX REVISION No. 132 of 1998 [2005] RD-AH 910 (30 March 2005)


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Ramesh Kumar.              ....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 04.07.1997 relating to the assessment year 1990-91.

Applicant was engaged in the manufacture and sale of bricks, alleged to have maintained books of account in the regular course of business. However, books of account have been rejected and the turn over was enhanced. In the present revision there is no dispute about the rejection of books of account. The only dispute raised is relating to the enhancement of the firing period and the average selling rate. During the year under consideration, applicant claimed to have operated the klin from 03.06.1990 to 15.06.1990. Tribunal, on the basis of survey dated 13.06.1990  when pathai, bharai, phukai and nikari were going on, inferred that the klin must have operated for the entire month of June and accordingly, estimated the production at four lacs bricks. Tribunal has estimated the average selling rate at Rs.450/- per thousand bricks.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that at the time of survey dated 13.06.1990 only five tone coal was found and there was no material that the coal was further purchased and klin was operated after 15.06.1990. Tribunal has not considered this aspect of the matter, though it has been specifically raised and borne out from the record. He further submitted that for the assessment year 1989-90 average selling rate at rs.300/- per thousand bricks has been accepted and without giving any basis average selling rate at Rs.450/- per thousand bricks has been fixed.

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

In my opinion, order of the Tribunal is not sustainable. Tribunal has not considered that at the time of survey dated 13.06.1990 only five tone coal was found, which was not sufficient to run the klin for the entire month of June unless there is material that the applicant has further purchased the coal. Tribunal has not examined this aspect of the matter. Tribunal has also not given any basis  for the estimate of average selling rate at Rs.450/- per thousand bricks. Though it is true that average selling rate at Rs.300/- per thousand bricks in the assessment year 1989-90 has been accepted because the books of account have been accepted but while making the best judgment assessment and fixing the average selling rate at Rs.450/- per thousand bricks some reasons must have been given by the Tribunal. In this view of the matter, case requires reconsideration by the Tribunal.

In the result, revision is allowed and the order of Tribunal dated 04.07.1997 is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in the light of the observations made above.




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