Court No. - 1
Case :- SALES/TRADE TAX REVISION No. - 396 of 2008 Revisionist :- M/S.Swastik Int Bhatta Chandauli Opposite Party :- Commissioner Trade Tax Counsel for Revisionist :- Aloke Kumar Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. The present revision has been filed against the order of the Trade Tax Tribunal, Varanasi dated 27.12.2007 in second appeal no. 698 of 2001 for A.Y. 1997-98 (U.P.).
2. Heard Sri Aloke Kumar, learned counsel for the applicant- assessee and Sri B.K. Pandey, learned Standing Counsel for the revenue.
3. The present revision has been pressed on the following question of law:
"Whether the Trade Tax Tribunal was legally justified in not granting the exemption claimed by the applicant in full specially when the Tribunal itself had granted exemption in full in similar sets of facts in Second Appeal Nos. 952 of 2003, 594 of 2001 and 873 of 2002?"
4. Learned counsel for the assessee submits, undisputedly, the asseessee was running a brick kiln during the assessment year in question. The Tribunal has completely erred in restricting the claim made by the assessee that it had given 2,00,000 bricks to the land owner in lieu of the land given by him to the assessee to operate the brick kiln. Against the claim of 2,00,000 bricks made by the assessee, the Tribunal, without affording any reason, had restricted the same to 1,50,000 bricks, in face of documents or evidence in shape of agreement between the assessee and the land owner and despite certificate issued by the Gram Pradhan in support thereof.
5. It is also his submission that on identical facts, the same member of the Tribunal, by his order dated 26.4.2006 in second appeal nos. 952 of 2003 and 227 of 2004 in the case of M/s Sarvashree Shankar Int Bhatta, Narayanpur, Chandauli, had allowed in entirety the similar claims in face of similar evidence.
6. Learned Standing Counsel would submit that these are matters of estimation and appraisal of evidence. Insofar as the assessee's other claim for exemption had been allowed by the Tribunal, partial disallowance of the claim with respect to 2,00,000 bricks given over to the land owner is wholly justified and reasonable.
7. Having heard the submissions so advanced by the learned counsel for the parties, in the first place, the Tribunal was only to act on the material or evidence brought before it. Neither it was open to the Tribunal to make any suppositions or assumptions as to facts nor it could have acted on any generalities in the matter dealing with the claim for exemption made by the assessee. In the facts of the present case, the assessee had brought before the Tribunal the agreement providing for supply of 2,00,000 bricks by the assessee to the land owner. It also relied on the certificate issued by Gram Pradhan that assessee had actually supplied that number of bricks to the land owner. There is no observation or finding made by the Tribunal to doubt the correctness either of the agreement or the certificate of the Gram Pradhan. No other evidence was brought on record by the revenue authorities to establish otherwise.
8. In such facts, the order passed by the Tribunal restricting the claim of exemption of 1,50,000 bricks is found to be based on no evidence and is therefore perverse.
9. In view of the above, the question of law (as framed above) is answered in the negative i.e. in favour of the assessee and against the revenue.
10. Accordingly, the present revision is allowed. A word "caution" may also be added for the Tribunal that while dealing with such matters, a more consistent approach should be adopted as may not give rise to submissions that have been advanced in the present case that the Tribunal has treated two similarly situated assessees i.e. the present assessee and M/s Sarvashree Shankar Int Bhatta, Narayanpur, Chandauli, differently.
Order Date :- 26.7.2019 Prakhar