Court No. - 1
Case :- SALES/TRADE TAX REVISION No. - 1114 of 2008 Revisionist :- M/S Vardhman Trading Company Opposite Party :- Commissioner Commercial Tax Counsel for Revisionist :- Nishant Mishra
Hon'ble Saumitra Dayal Singh,J.
1. Heard Shri Nishant Mishra, learned counsel for the assessee and Shri B.K. Pandey, learned Standing Counsel for the revenue.
2. Present revision has been filed against the order of the Trade Tax Tribunal, Varanasi Bench-2, Varanasi, Camp Meerut dated 13.05.2008 passed in Second Appeal No. 440 of 1994 for A.Y. 1989-90. By that order, the Tribunal had dismissed the appeal filed by the assessee.
3. Twenty nine years have passed, since the close of the assessment year, however, the issue whether the freight charges paid by the assessee to bring the goods to his place of business, is to be included in his turnover, has been kept alive.
4. During the assessment year in question, the assessee had engaged in the trading in coal. He was a licensed coal agent to whom different quantities of coal were allotted to be supplied to the coal depot holders, as per the directions of the District Magistrate, Meerut. Thus, upon allotment made, various railway rake of coal were dispatched from the collieries to Meerut. The assessee claimed that the freight charges were paid to the railways by the coal depot holders and not the assessee and, therefore, those charges were not liable to be included in his turnover by virtue of the definition of turnover given under Section 2(i) of the U.P. Trade Tax Act, 1948. According to the assessee, since the freight had been separately charged and paid, it would remain excluded from the turnover of the assessee. This claim was disbelieved by the assessing officer, who included the entire freight charges in the turnover of the assessee. The assessment order was confirmed in first appeal vide order dated 09.09.1994. That order became subject matter of challenge in Second Appeal No.440 of 1994, which also came to be allowed by the Tribunal vide order dated 18.02.1997. According to the Tribunal, since the freight charges had not been paid to the assessee, but by the coal depot holders, the same could not be included in the turnover of the assessee. That order of the Tribunal dated 18.02.1997 became subject matter of challenge at the instance of the revenue in T.T.R. No.748 of 1997. It came to be allowed with the following observation:-
"None of the authorities have considered the claim of the order as raised by the counsel for the dealer that the coal was sold by endorsement of bilties in favour of brick kiln owners. If the sale had been affected by the endorsement of bilties in favour of the brick kiln owners and the brick kiln owners have taken the delivery of the goods from the Railway on payment of freight, the position would be entirely different. In my opinion, in that case freight would not be part of turn over. No such finding has been recorded by the Tribunal. Therefore, matter requires consideration by the Tribunal. It is further stated that the Tribunal should also consider whether the dealer acted as an agent of brick kiln owners in making the purchases and what is evidence in this regard. This aspect of the matter requires reconsideration in the light of the decision of this Court in the case of CST Vs. Ramapati Tewari (supra), and CST Vs. Sharma Coal Depot (supra).
In the result, revision is allowed. Order of the Tribunal is set aside and the matter is remitted back to the Tribunal to decide the appeal afresh in the light of the observation made above."
5. Thus, this Court remanded the matter to the Tribunal principally to return a finding whether there was a sale performed by the assessee, while the goods were in transit. At the same time, another direction was issued by this Court to the Tribunal to determine whether the assessee had conducted itself as a commission agent of the coal depot holder.
6. Perusal of the order of the Tribunal reveals that the claim of the sale by endorsement could not be established by the assessee by any documentary evidence. The documentation relied upon by the assessee was only to the effect of intimation made by the assessee to the railway authorities of the manner in which the coal supplied had been dealt with. As to the claim of commission agency, also no evidence could be led to establish its existence.
7. Here, it may be noted, it was a very strange on the part of the assessee to have set-up such plea, inasmuch as, sale in transit by endorsement and sale by mode and method of commission agency were mutually exclusive contingencies to begin with. Therefore, in the first place, perhaps, the assessee should not have been allowed to take both pleas.
8. In any case, since the pleas were allowed to be taken by this Court, at present what survives for consideration is whether the findings recorded by the Tribunal suffer from any error of law.
9. As noted above, both findings recorded by the Tribunal are based on appraisal of evidence and material on record. The assessee could not establish either that it had performed the sale in transit by endorsement or that it had acted as a commission agent.
10. In the present revision, learned counsel for the assessee has sought to raise a plea that the sale was completed at the point of goods being loaded on the railway rakes, that is, during transit. That plea is, in fact, a third and a completely new plea, being sought to be raised as a result of ingenuity of the learned counsel for the assessee, but real.
11. Findings recorded by the Tribunal are based on evidence and material on record. In any case, findings recorded are consistent with the law laid down by the Supreme Court in the case of M/s. India Meters Limited Vs. State of Tamil Nadu 2010 (U.P.T.C.) 1309.
12. The revision lacks merit and is accordingly dismissed.
Order Date :- 26.7.2019 Saif/Meenu