RAJES KUMAR, J. - (1.) PRESENT two revisions under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as 'the Act') are directed against the order of the Tribunal dated April 7, 1998 relating to the assessment years 1987 -88 and 1988 -89.
(2.) THE dealer/opposite party (hereinafter referred to as 'the dealer') claimed to be an association of the brick kiln owners and was engaged in the business of buying and selling of coal. It was registered under the U.P. Trade Tax and Central Sales Tax Acts. The coal was imported against the declaration form XXXI as contemplated under Section 28A of the Act from outside the State of U.P. Forms C were also issued relating to such purchases. Coal was imported through railway. Such coal was sold to the brick kiln owners for which bills were raised and tax was charged. Tax was also admitted and deposited. During the course of the assessment proceeding, dealer claimed that freight was directly paid by the brick kiln owners to the railway and, therefore, the freight could not be the part of the turnover. The assessing authority has not accepted the claim, inasmuch as it could not be substantiated by the evidence, freight was accordingly treated as part of the turnover and tax was assessed to tax. First appeals filed by the dealer were allowed and the tax levied on the freight was deleted. Commissioner of Trade Tax filed appeals before the Tribunal, which have been rejected by the impugned order. Heard Sri B.K. Pandey, learned Standing Counsel and Sri R.R. Agrawal, learned Counsel for the dealer.
(3.) THE learned Standing Counsel submitted that the dealer was not able to substantiate that the freight was paid by the brick kiln owners to the railways, but even assuming that the freight was paid by the brick kiln owners, it was paid on behalf of the present dealer inasmuch as the railway receipt was in the name of the dealer and at no stage, railway receipt was endorsed in favour of the brick kiln owners. He also submitted that freight was inward freight incurred before the sale of the coal and, therefore, it was part of the turnover. In support of his contention, he relied upon the decisions of this Court in the case of Commissioner of Trade Tax v. Ramapati Tewari Jainath Tewari reported in [2005] UPTC 76 and Commissioner of Trade Tax v. Sharma Coal Co., Azamgarh reported in [2008] 16 VST 517 (All) [FB] : [2005] UPTC 1165.;