Heard Sri Bharatji Agarwal, learned Senior Advocate, assisted by Sri Piyush Agarwal, learned counsel for revisionist and learned Standing Counsel for the respondent.
The instant trade tax revision under Section 11 of the U.P. Trade Tax Act has been filed against the order of the Trade Tax Tribunal, Ghaziabad, Bench-II, Ghaziabad dated 6th May, 2003 passed in Second Appeal No. 212 of 2001.
The order passed by the Trade Tax Tribunal is being challenged before this Court on two grounds:
(a) plant and machinery, which was sold by the petitioner to ICICI Bank for a sum of Rs. 33,00,000/- was embedded to earth and therefore, sale of such plant and machinery does not answer the description of goods within the meaning of Section 2 (d) of U.P. Trade Tax Act. Consequently, no trade tax was attracted on the said sale transaction,
(b) plant and machinery sold by the petitioner answers the description of a renewable source of energy plant covered by Entry-23 of the Notification dated 31st January, 1985 read with Government Notification dated1st January, 1987, thereafter exemption trade tax.
So far as the first contention raised on behalf of the revisionist is concerned, suffice is to record that no such pleas was raised/pressed by the revisionist before the Trade Tax Tribunal. Consequently, no finding has been returned in respect of the said issue. This Court will not permit the petitioner to challenge the order of Trade Tax Tribunal on a plea not raised and pressed before it, specifically when it require enquiry into facts also. Therefore, and therefore, the first issue raised stands rejected.
So far as the second contention raised on behalf of the petitioner is concerned, this Court finds that the Trade Tax Tribunal has categorically recorded that the petitioner had purchased following plant and machinery:
(a) Waste Heat Recovery Boiler Economizer Equipment (Value Rs. 3, 61,140/-),
(b) Part matterial for Waste Heat Recovery Boiler (value Rs. 3,43,083/-),
(c) Structure instrument (value Rs. 20,60,905.60/-),
(d) C-Panel (value Rs. 1,74,551/-),
(e) Steam Drum & Water Drum (value Rs. 10,83,420/-) and
(f) Instulation material (value Rs.43, 680/-).
All these goods were purchased through different invoices and on different dates. It has been held that the revisionist could not establish that the aforesaid plant and machinery answers the description of the goods covered by Entry-23 of the notification dated 31st January, 1985. The revisionist claimed to have assembled the aforesaid plant and machinery for constructing a unit to be used as a renewable source of energy plant. It has been specifically noticed that the revisionist infact is not a dealer in manufacturing of such plants. He infact is a manufacturer synthetic yarn. It has therefore, been held that the the plant and machinery sold by the petitioner is not covered by Entry-23 of the Notification dated 31st January, 1985.
Learned counsel for the revisionist with reference to the fact that the entire plant has been sold as one unit to ICICI Bank for a sum of Rs. 33,00,000/-, contended that the plant and machinery sold by the revisionist would be covered by Entry-23 of the Notification dated 31st January, 1985, inasmuch as such plant and machinery was being used by the revisionist for running a renewal source of energy plant.
Learned counsel for the department has supported the reasons recorded in the order of Tribunal.
I have considered the submissions made by the learned counsel for the parties and have examined the records of the present trade tax revision.
I am of the considered opinion that the contention raised on behalf of the revisionist is unsustainable. Merely because, the revisionist has assembled various machineries purchased on different dates and has assembled the same in a manner to be used as a renewable source of energy plant, it will not mean that the revisionist has sold a plant covered by Entry-23 of the Notification dated 31st January, 1985 to ICICI Bank on 14/16th July, 1994.
The plants and machineries as sold by the revisionist to ICICI Bank, infact are different plants and machineries as purchased by the revisionist on various dates through different invoices. Mere assembling of the plants and machinery in a particular manner by the assessee to be used in a particular manner in his own factory so as to be used as a renewable source of energy of plant will not mean that he has sold a renewable source of energy plant to ICICI Bank. The Trade Tax Tribunal appears to be justified in recording a finding of fact that separate plants and machineries have been sold by the revisionist not covered by Entry-23 of the Notification dated 31st January, 1985.
There is no illegality or infirmity in the order passed by the Trade Tax Tribunal.
The present trade tax revision lacks merit and is accordingly dismissed.
Interim order, if any, stands discharged.
(Arun Tandon, J.) Order Date :- 12.7.2011 Sushil/-