JUDGMENT Anshuman Singh, J.
1. This revision under Section 11(1) of the U. P. Sales Tax Act has been filed by the assessee against the order dated 14th December, 1984, passed by the U. P. Sales Tax Tribunal, Lucknow, relating to the assessment year 1974-75.
2. The applicant-revisionist is a public limited company incorporated under the Companies Act having its registered office at Mirza Ghalib Road, Dunlop House, Calcutta and a branch office at 3, Shahnajaf Road, Lucknow and is registered under the U. P. as well as under the Central Sales Tax Acts. For the assessment year in question the Assistant Commissioner (Assessment) accepted the books of account of the applicant and assessed it on the total taxable turnover of Rs. 8,49,82,955.09. The applicant feeling aggrieved by the said order filed an appeal before the Deputy Commissioner (Appeals), Sales Tax and by order dated 25th April, 1981, the said appeal was partly allowed. The applicant aggrieved by the aforesaid order preferred a second appeal before the Sales Tax Tribunal and the Tribunal dismissed the appeal by the impugned order. The assessee has challenged the said impugned order in the instant revision.
3. I have heard Mr. Bharatji Agarwal, learned counsel for the applicant and the learned chief standing counsel appearing for the department. The first contention raised on behalf of the applicant-assessee in the present revision is that the assessee made sales against form 3 Kha to the customers, who had been granted recognition certificate under Section 4-B of the U. P. Sales Tax Act. Since the sales were made by the applicant to the customers against the issuance of form 3 Kha, he did not realise sales tax from the customers and as such, the authorities were not justified in imposing the tax on the assessee. The other question which has been raised by the applicant in the case is as to whether rims sold by the assessee were declared commodity within the meaning of Section 14(iv)(viii) of the Central Sales Tax Act. It has been submitted by Mr. Bharatji Agarwal that the assessee had produced form 3 Kha before the assessing authority. A photostat copy of which has been filed along with the supplementary affidavit in this revision. Form 3 Kha contains a Notification No. ST-4748/X-900(15)-61 dated 10th October, 1968. According to which bicycles, tricycles and perambulators were declared to be notified goods for the purposes of Section 4-B of the U. P. Sales Tax Act, 1948. The Tribunal in its order has referred to a notification dated 11th June, 1974, in support of its finding. On the basis of notification dated 11th June, 1974, it has taken the view that the benefit of Section 4-B could not be given to the assessee-applicant because he had not sold the rims to new units. I have carefully perused the notification dated 11th June, 1974. The said notification nowhere mentions that the notification dated 10th October, 1968, has been superseded. For properly appreciating the controversy it is desirable to refer the exact wording of the Notification No. ST-3867/X-902(70)-72, dated 11th June, 1974, which is as follows:
In exercise of the powers under Section 4-B of the U. P. Sales Tax Act, 1948 (U. P. Act No. XV of 1948), as amended by the Uttar Pradesh Sales Tax (1) ST-2262/X-902(63)-50, dated June 12, 1969 (S. No. 369) (2) ST-2619/X-900(21)-69, dated July 1, 1969 (3) ST-4748/X-900(15)-61, dated October 10, 1969 (4) ST-II-l/X-902(70)-72, dated January 2, 1974 (S. No. 72) (Amendment) Ordinance, 1974 (U.P. Ordinance No. 11 of 1974), read with Section 21 of the U.P. General clauses Act, 1904 (U.P. Act No. 1 of 1904 the Governor is pleased to supersede, with immediate effect, the marginally noted notifications and to order that, subject to the conditions and restrictions specified in the said Section 4-B.
4. The learned counsel for the applicant has contended that since notification dated 10th October, 1968, has not been superseded by the notification dated 11th June, 1974, the view taken by the Tribunal that the benefit of Section 4-B was not available in the case of the assessee, is wholly erroneous. The said contention appears to have some force. If the notification dated 10th October, 1968, had not been superseded or withdrawn and was in existence on the date of the assessment, the Tribunal was not justified in refusing to give the benefit of Section 4-B of the U. P. Sales Tax Act. It appears that the Tribunal has not tried to look into the notification dated 10th October, 1968, while deciding the case and, as such, it is expedient that the Tribunal should be directed to decide the appeal afresh taking note of the notification dated 10th October, 1968. In case the said notification has not been superseded and the assessee sold goods to the customers against the issuance of form 3 Kha, who had been granted recognition certificate under Section 4-B of the U. P. Sales Tax Act, the applicant would be entitled to the said benefit inasmuch as he could not have realised the sales tax from the customers, if they had been given recognition certificate and had issued form 3 Kha.
5. In the result, the revision succeeds and the order passed by the Tribunal dated 14th December, 1984, is set aside and the Tribunal is directed to decide the case afresh in the light of the observations made above. However, there shall be no order as to costs.
6. Let a copy of the order be sent to the Tribunal concerned as contemplated under Section 11(8) of the U. P. Sales Tax Act.