SUDHIR AGARWAL,J. - (1.) Heard Sri Pradeep Agarwal, learned counsel for revisionist and learned Standing Counsel for respondent.
(2.) This revision under Section 11 of U.P. Trade Tax Act, 1948 (hereinafter referred to as "Act 1948") has been filed against judgment and order dated 05.09.2008 passed by Trade Tax Tribunal, Bench 3, Lucknow (hereinafter referred to as "Tribunal) in Appeal no. 61 of 2005. Dispute relates to taxability of Jau Ghat (Mota Anaj), "whether it is taxable or not". This revision was admitted on following questions of law: "(i) Whether, the learned member Tribunal was justified in treating Jau Ghat as a fine grain of Barley and not a cattle fodder fit for human consumption despite the decision of this Hon'ble Court in the case of Abdul Ghani Banney Mian v. Commissioner of Sales Tax . (ii) Whether, the learned Tribunal was justified in treating Jau Ghat is a cattle fodder and whether it is open for the learned Tribunal to twist the facts of the case merely on the basis of the averments made by the opposite party in the memo of appeal. (iii) Whether, the learned member Tribunal was justified to disturb and distinguished the findings of facts arrived at by the first appellate authority without any adverse material on record that Jau Ghat is a fine grain and is fit for human consumption."
(3.) Assessing Authority has held it taxable without any discussion. It admitted that it is Jau Ghat (Mota Anaj), but held liable to 4 percent tax. The relevant extract of order of Assessing Authority reads as under: ...[VERNACULAR TEXT OMITTED]... " Outofstate sale of 'tax paid' coarse grain (Jaughat) has been made to the tune of Rs. 92,23,400.00, Form 'C' whereof has been filed. Hence, tax shall be levied on it @4 and tax amount paid in the state shall be adjusted against the tax levied.";