Decided on December 27,2012

Commissioner, Commercial Tax (Earlier Trade Tax) Appellant
D.S.M. Sugar (Kashipur) Ltd. Respondents


- (1.) Dhampur Sugar Mills Limited is the holding company of D.S.M. Sugar (Kashipur) Limited, the respondent-assessee herein. Certain plant and machinery of the respondent-assessee were shown in its balance-sheet and, in particular, in Schedule 10 thereto to have been transferred to Dhampur Sugar Mills Limited. This transfer was treated as sale by the assessing officer. The respondent-assessee contended that those plant and machinery are immovable properties and, accordingly, they being not moveable properties, no sales tax is leviable thereon. It was further contended that, in fact, no sale has taken place, but only a book adjustment has been made. The assessing officer rejected the contention. The matter ultimately reached, at the instance of the revisionist, the Tribunal as it lost before the first appellate authority. The Tribunal held that the plant and machinery were not moveable properties; they were immovable. The Tribunal took into consideration the fact that the machinery in question was nothing, but a boiler and its accessories. No independent investigation was made to ascertain, whether the boiler was installed in such a manner that the same could not be removed; whereas there is specific finding by the assessing officer to the effect that the boiler in question was purchased by the respondent-assessee and the same was installed by the respondent-assessee. Therefore, there is no difficulty in removal thereof, if it is so decided to remove. The Tribunal further proceeded to hold that since Dhampur Sugar Mills Limited was the holding company of the respondent-assessee, without effecting in fact a transfer of the said plant and machinery, a book adjustment was made. We hold that, having had made a representation in the balance-sheet and, in particular, in Schedule 10 to the effect as it made the representation, respondent-assessee estopped itself from making a contrary representation. In Schedule 10 to the balance-sheet, it was clearly held out that there has been a transfer of the said plant and machinery. It could not, thereafter, be contended that, in fact, no transfer took place, it was only a book adjustment. We think, in the revision, interference is called for and, accordingly, we set aside the order of the Tribunal and of the first appellate authority and restore the order of the assessing officer.;

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