This revision under section 11 of the U.P. Trade Tax Act has been filed by the State for the assessment year 1991-92 against the order passed by the tribunal dated 1.9.1997. The sole question of law referred is as under:
"(i) Whether on the facts and in the circumstances of the case, Trade Tax Tribunal was legally justified to hold the sale of motor parts Rs.4,72,852.93 exempt considering it as replacement in warrant period?"
Learned standing counsel has argued that this matter is completely concluded by the decision of Hon'ble Apex Court in the case of Mohd. Ekram Khan and sons vs. Commissioner of Trade Tax, reported in 2004 U.P.T.C. 1198. His argument is that since the money was accepted by the assessee for the spare parts, which came during the warrantee period, the transactions were liable to be taxed in the State.
Learned counsel for the assessee has sought to rely decision of the Rajassthan High Court in the case of C.T.O. (AE), Jodhpur versus M/s. Marudhara Motors, Jodhpur (S.B. Civil Sales Tax Revision no. 118 of 2008) decided on 14.4.2008 has sought to distinguish the case of Mohd. Ekram Khan (supra) in para 20 (ii) i.e. in the case of situation where the spare parts or defective parts as collected by the assessee and sent back physically to the manufacturer who either replaces defective parts or gives credit notes equal to the value of such replaced new parts.
In the present case, there is no finding as to whether in this case, the defective parts were sent back to the manufacturer or not. The matter is sent back to the tribunal to reconsider this aspect of the matter. The tribunal will record finding as to whether the defective parts which were replaced, were sent back to the manufacturer or not and thereafter will pass fresh orders within a period of three months from the date of production of a certified copy of this order being placed before the tribunal within the next three weeks from today.
The revision is disposed of as above. No costs.
Order Date :- 28.1.2010 rk