- (1.) This revision has been filed by an assessee under Section 11 of the U. P. Trade Tax Act, 1948 for the assessment year 1989-90 against the order of the Trade Tax Tribunal dated April 11, 2001 by which the Tribunal has partly allowed the appeal of the assessee and has fixed the taxable turnover at Rs. 46,00,000.
(2.) The facts of the case are that the assessee was carrying on the business of railway contractor and was quarrying, stocking and supplying stone ballast to the railways. The assessee made two contract with the railways. One was for supply and other was a cartage. There are three issues in this case, firstly, the assessee is aggrieved by the inclusion of freight in its turnover and avers that the freight was being born by the railways. The second issue raised by the assessee is that the Tribunal has wrongly rejected the evidence produced by the assessee and should have accepted its evidence towards 3D evidence as additional evidence under Section 12B. The third issue raised by the assessee is that the Tribunal has wrongly assessed the assessee as a manufacturer as the assessee is not a manufacturer within the meaning of Section 2(e) of the U. P. Trade Tax Act. The questions of law sought to be answered are hereunder: (i) Whether, on the facts and in the circumstances of the case, the learned Tribunal was correct not to delete the cost of cartage from the payments of supply of ballast which has been separately charged as per Schedule of rates and as per Clause (10) of the agreement ? (ii) Whether the learned Tribunal was correct to hold that freight is the part of turnover only on the ground that the applicant has not submitted any bill for payment of the same to the railways ignoring clause 16 of the special conditions of contract which provides the mode of measurement and payment strictly on the basis of the stock measurement and the bill shall be prepared by the railways and not by the applicant as per clause 16(e) ? (iii) Whether the learned Tribunal was correct to ignore that according to the agreement, schedule of rates, quantities, rate of contract for supply of ballast, cartage and loading charges are separately charged and the certificate issued by the railways also demonstrates the payment in separate head and it cannot be part of turnover ? (iv) Whether the learned Tribunal was correct not to consider that there were two types of contract entered into between the applicant and the railways, one for supply of ballast and the railways, one for supply of ballast and the other cost of cartage and loading charges which was separately charged in the bills prepared by the railways. Accordingly, the cost of ballast is to be taken as turnover within the definition of the 'turnover' ? (v) Whether the Tribunal rightly held that on similar circumstances the case of the applicant for the assessment years 1985-86 to 1988-89 and 1990-91 to 1997-98, the cost of supply of ballast only was taken as turnover, but in this year the Tribunal held that the same has no application in the assessment year in question ? (vi) Whether the Tribunal was correct to hold that the decision of Aruna Trading Company v. CST,1993 UPTC 82 was not applicable to the facts of the present case ? (vii) Whether the learned Tribunal was correct to draw adverse inference that the production of stone ballast made by the applicant was duly recorded in the books and non-verifiability of the production and raw material where sales of manufactured goods are made to second party ? (viii) Whether the Tribunal was correct to make enhancement in turnover when no enquiry was made from the railways that payment certificate was issued by the railways was verifiable (See New Era Processor v. Commissioner of Sales tax,1993 UPTC 213? (ix) Whether the learned Tribunal was correct to reject four forms HID dated March 22, 1994 issued by the railways on the ground that the same was not filed before the Tribunal when the applicant filed additional evidence specifically stating that the same was filed before the Tribunal and there was no occasion before the applicant to file the application before the Tribunal afresh ? (x) Whether the learned Tribunal was correct that there was enhancement of turnover to Rs. 38,45,226.71 as against the turnover of Rs. 12,71,446.32, on which sales tax amounting to Rs. 55,942.81 was deposited ? (xi) Whether the learned Tribunal was correct to hold that the assessee was not maintaining account books in accordance with Section 12(2) of the Act looking to the modus operandi of the applicant and also on the fact that the purchases were duly recorded in the account books ?
(3.) I have heard the learned Counsel for the revisionist at length and also the learned standing counsel.;