Prakash Krishna, J. - (1.) THE present revision is directed against the order dated April 7, 2000 passed by the Trade Tax Tribunal in Second Appeal No. 1170 of 1994 -95 whereby and whereunder it has fixed the turnover of coal at Rs. 3,24,000.
(2.) THE dealer -opposite party carries on the business of purchase and sale of foodgrains, oilseeds, rice bran, coal, etc. The dispute in the present revision is confined with regard to turnover of coal only which was assessed at Rs. 7,20,000 by the assessment order dated March 30, 1998. The said order was confirmed by the first appellate authority by the order dated December 7, 1998 and has been modified by the Tribunal by the order under revision. In the memo of revision, the following questions of law have been sought to be raised: (i) Whether the Trade Tax Tribunal was legally justified to hold that the inward freight paid for the purchase of coal is not part of the turnover ? (ii) Whether the Trade Tax Tribunal was legally justified to allow the adjustment and refund of amount deposited at check -post for composition of offence on contravention of the provisions of Section 28A of the U.P. Trade Tax Act, 1948 as compounding amount? (iii) Whether the Trade Tax Tribunal was legally justified to determine the selling rate of coal lower than the declared rate by the dealer?
(3.) SO far as question Nos. 1 and 3 are concerned, the assessing authority was of the view that inward freight paid for the purchase of coal is part of the turnover. Before the assessing officer, it disclosed the purchase of 9340.8 tons of coal from colliery. The dealer -opposite party has paid the freight for transportation of coal from colliery situate outside the State of U. P., to the coal depot. It claimed that it made the purchases as commission agent on behalf of purchasers of coal. The said plea was not found favour by the assessing officer as in the purchase order names and addresses of purchasers were not disclosed. No agreement of agency was filed. In the absence of relevant material, the assessing officer took the view that the purchases were made by the dealer -opposite party in his own account and commission was charged by way of profit. Even if the freight has been charged separately in the bills, it will not change the nature of transactions and it is the case of sale of coal from principal to principal. The Tribunal took the view that as the dealer has imported coal from outside the State of U.P. and has charged the freight separately in the bills and the freight has been paid by the purchasers. Even if the dealer has paid the freight which was his obligation to facilitate the import of coal, it will amount to purchase of coal in his own account of the dealer and as such, it excluded the freight from the turnover.;