Prakash Krishna, J. - (1.) THESE two revisions were heard together and are being disposed of by a common judgment as they are directed against a common order dated September 16, 2000 passed by the Trade Tax Tribunal. The dispute relates to the assessment years 1994 -95 and 1995 -96. The arguments were advanced with reference to revision No. 1474 of 2000 relevant to the assessment year 1994 -95, hence the facts from the said file are noticed. The learned Counsel for the parties agreed that identical controversy is involved in the connected revision No. 1475 of 2000 for the subsequent assessment year.
(2.) IN the memo of revision although 11 questions of law have been sought to be raised but Shri Suyash Agrawal, learned Counsel appearing for the applicant submits that he has confined his argument with regard to the following two questions of law only: 1. Whether, on the facts and circumstances of the case, the finding recorded by the authorities below that the transaction in question amounts sale, is correct? 2. Whether the learned Tribunal was correct to impose additional tax on the turnover of ornaments and bullions, specially when it was not subject -matter of second appeal filed by the Commissioner nor was it imposed by the assessing authority in view of the decision of G.D. Steels & Gases Private Limited v. Commissioner of Trade Tax, [1999] 115 STC 491 :, [1995] UPTC 35 ? With regard to question No. 1, the case of the dealer -applicant was that he is goldsmith and manufactures ornaments only on labour basis. In other words, it was submitted that the work carried out by him was on contract basis and there is no sale of purchase either of bullion or gold ornaments at Ws hand. The said plea did not find favour with any of the authorities below including the Tribunal. The Tribunal has considered the matter in great depth. It has rejected the contention on the basis of the facts as found in the survey dated March 5, 1997. In the said survey a diary, loose papers and the ornaments in stock were found. The details of the stock found have been noticed by the Tribunal in its order. 21 sets of silver ornaments were found which had gold polish. At the time of survey gold ornaments weighing 250 gms. were also found. On the basis of various entries recorded in the diary, an inference has been drawn by the authorities below that the dealer is indulging in sale and purchase of bullion. The said finding recorded by the Tribunal is basically a finding of fact. The learned Counsel for the dealer could not point out any illegality or infirmity therein. The inference drawn by the Tribunal is based on the material on record and the said finding cannot be said to be arbitrary or perverse. In the absence of any material to the contrary, the Tribunal has rightly drawn the inference that the dealer is carrying on the business of sale and purchase of bullion and gold ornaments, etc. The Tribunal has rightly negatived the plea of the dealer that he is doing job -work only.
(3.) SO far as the second controversy is concerned, I find some force therein. A perusal of the assessment order as well as the order of first appellate authority would show that no additional tax was levied on the sale of gold ornaments and on the purchase of bullion. The Tribunal for the first time while hearing the appeals levied additional tax as assessed turnover exceeds Rs. 10 lakhs. It is relevant to notice here that the Commissioner of Trade Tax had also filed appeals against the order of the first appellate authority. A copy of the memo of the second appeal filed by the Commissioner has been annexed along with the revision. In the said memo of the appeal no such ground was raised by the Commissioner that the authorities below committed mistake in not levying additional tax at the rate of one per cent. The controversy involved is not res integra and has been set at rest by a judgment of this Court in G.D. Steels & Gases Private Limited v. Commissioner of Trade Tax, [1999] 115 STC 491 (All) :, [1995] UPTC 35. It has been held that under Section 10 of the U.P. Trade Tax Act the Commissioner cannot challenge the assessment order. The subject -matter of the appeal before the Tribunal was the relief which was granted by the first appellate authority and not beyond it. As already noticed herein above, the additional tax was not levied even by the assessing officer.;