Court No. - 59
Case :- SALES/TRADE TAX REVISION No. - 1223 of 2009 Revisionist :- S/S Bharat Int Bhandar Opposite Party :- Commissioner Of Trade Tax Counsel for Revisionist :- M.R. Gupta Counsel for Opposite Party :- S.C.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri M.R. Gupta, learned counsel for the applicant-assessee and Sri B.K. Pandey, learned Standing Counsel for the revenue.
2. The present revision has been filed by the assessee against the order of the Trade Tax Tribunal, Varanasi dated 30.11.2005 passed in Second Appeal No. 243 of 1998 for A.Y. 1987-88 (U.P.). By that order, the Tribunal allowed the revenue's appeal and reversed the first appeal order. It has thereafter revived the assessment order wherein according to estimate made by the assessing authority the production during the second season of the assessment year in question has been estimated at 45 days.
3. Undisputedly, the assessee had run the brick kiln during the assessment year in question. The present dispute is with respect to the running of brick kiln during the second season of the assessment year in question. In that regard, the assessee had claimed that it had not run the brick kiln in the second season on account of some protest made by the association of the brick kiln who were demanding implementation of compounding scheme. Owing to such demand, the brick kiln owners had also not allowed for any survey to be conducted. In such facts, the assessee is claimed to have informed the assessing authorities in April, 1998 that it had not run the brick kiln during the assessment year in question.
4. Having heard learned counsel for the parties and having perused the record, it appears that the first appeal authority granted relief to the assessee and held that the brick kiln had not been run during the second season on the reasoning that the brick kiln owners were protesting against non-implementation of compounding scheme. Further, it has been reasoned that if the survey could not have been conducted due to the conduct of the brick kiln owners, the assessing officer could have detected smoke from the chimneys of such brick kiln owners and thereafter inferred that the brick kiln had been run during the second season of the assessment year in question.
5. Such reasoning had been disproved by the Tribunal. Accordingly, estimate made by the assessing authority restored. The reasoning given by the first appeal authority is plainly absurd. Once it has been accepted that the assessee and others were not permitting any survey to be conducted, it could never be reasoned that the assessing authority could still have conducted the survey by observing the smoke emanating from various chimneys. It being accepted brick kiln owners such as the assessee were not allowing for any survey to be conducted, even if that exercise had been carried out it would have, besides being illogical, been completely unreliable in absence of any participation by the assessee.
6. Then, keeping in mind the fact that the opinion of the closure of the brick kiln was given belatedly, after close of the second season, the same could not be acted upon. If it was a fact that the assessee had participated in the protest and his brick kiln was closed during the entire season, evidence of such fact would have existed. No such evidence exists or is shown.
7. In the facts of the present case, the finding of the Tribunal are based on the material and evidence existing on record.
8. The present revision lacks merit and is accordingly dismissed.
Order Date :- 26.9.2019 Abhilash