HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 10 Case :- SALES/TRADE TAX REVISION No. - 853 of 2004 Petitioner :- Commissioner Trade Tax Respondent :- New Jai Brick Fields Petitioner Counsel :- S.C. Respondent Counsel :- Ashok Kumar Hon'ble Arun Tandon,J.
This trade tax revision has been filed by the Department against the order of the Trade Tax Tribunal passed in Second Appeal No. 6 of 2002 (assessment year 1996-1997).
The only issue for consideration in the second appeal before the Tribunal was as to whether the assessee had in fact entered into any transaction of sale of the brick available between the period 01.10.1996 to 08.10.1996.
Before the Assessing Authority, the assessee had filed a copy of the agreement supported by affidavit which establish that the stocks were sold to one Jitendra Singh, the goods could not be delivered to Jitendra Singh up to 30.9.1996, therefore, on the date of survey, the transportation of goods was in progress. The Assessing Authority did not accept the agreement on the ground that it was neither registered nor certified. Accordingly, it was held that the assessee had entered into sale of bricks between 1.10.1996 to 8.10.1996.
Not being satisfied, the assessee filed first Appeal No. 463 of 2000 which was partly allowed by refixing tax liability at Rs. 50,250/-.
Not being satisfied, two appeals were filed one by assessee and the other by Department being Appeals No.6 of 2002 and 54 of 2001 respectively. The appeal filed by the department has been dismissed while the appeal filed by the assessee has been allowed. Hence this revision.
On examination of the order passed by Tribunal, this Court finds in paragraph 10, it has been recorded that the Assessing Authority did not get any enquiry done qua claim of the assessee that he had sold the entire stock of bricks to Jitendra Singh prior to 30.9.1996 and that only transportation of the sold goods was in progress on the date of survey. Similarly, he found that the first appellate authority has committed an error in not recording that sufficient reasons for refusing to accept the plea qua sale of the said stocks of bricks prior to 30.9.1996. The Tribunal has specifically come to a conclusion that both the assessing and the first appellate authority without getting any enquiry conducted as to whether the assessee in fact sold the bricks prior to 30.9.1996 or not, have wrongly rejected the explanation furnished by the assessee. The Tribunal on the said conclusion has allowed the appeal filed by the assessee.
In my opinion, if the Tribunal was of the opinion that enquiry as required had not been done to get the authenticity of the agreement set up including the affidavit in support thereof, it was but necessary for the Tribunal to have remanded the matter to the Assessing Authority for getting such an enquiry conducted. The Tribunal on his own without verification of the correct facts in that regard could not have considered the case to records after setting aside the demand of tax entirety.
In the facts of the case, the order of the Tribunal in so far as it sets aside the demand of tax cannot be faulted with. However, the matter should have been remanded back to Assessing Authority for an enquiry being conducted in respect of explanation furnished by the petitioner qua remaining bricks stock of being sold to Jitendra Singh prior to 30.9.1996 and thereafter to proceed to assess the tax liability, if any afresh. It is ordered accordingly. The exercise must be completed within four months from the date a certified copy of this order is produced before the assessing authority.
The trade tax revision is partly allowed in light of the observations made above.
Order Date :- 16.8.2011 Puspendra