Prakash Krishna, J. - (1.) THE present revision has been filed under Section 11 of the U.P. Trade Tax Act, 1948 hereinafter referred to as "the Act" against the order dated December 8, 1999 passed by the Trade Tax Tribunal in two connected second appeal Nos. 93 of 1999 and 94 of 1999 (U.P. and Central). The dispute in the present revision relates to the assessment year 1993 -94 (U.P.).
(2.) THE facts of the case lie in a narrow compass. The dealer -opposite party is carrying on the business of manufacture and sale of calcium carbonate, etc. The dealer -opposite party, before the assessing authority claimed exemption on the purchase of rice husk purchased from unregistered dealer. The said claim was negatived and best judgment assessment order was passed on January 31, 1997. The appeal against the said order has been allowed in part. The appellate authority found that out of total purchase of Rs. 69,50,000, it has purchased paddy husk of Rs. 40,00,000 which shall be exempt and the remaining amount represents the purchase of rice husk on which the tax, treating it to be the first purchase, shall be payable. The appeal was allowed in part. In further appeal, both by the Department and by the assessee, the Tribunal by the order under revision has allowed the appeal in part filed by dealer and dismissed the appeal preferred by the Department. In the memo of revision, the following questions of law have been sought to be raised: (i) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified in holding that rice husk and paddy husk are different commodities without considering the law laid down by the honourable High Court in the case of Commissioner of Sales Tax, U.P. v. Naveen Traders : [1975] 36 STC 440 (All) : [1973] UPTC 215 and Commissioner, Sales Tax, U.P. v. Jiwan Singh, Rikhi Ram, [1978] STJ 66 ? (ii) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to hold paddy husk as an unclassified item despite it has made taxable under Government notification issued in this behalf ? (iii) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to quash the tax on the lease amount received for transfer of right to use plant and machinery without considering the law laid down by the honourable Supreme Court in the case of Sirpur Paper Mills Ltd. v. Collector of Central Excise : AIR 1998 SC 1489 : [1997] 10 JT 82 (SC) ? (iv) Whether, the Tribunal is legally justified to quash the tax assessed on the sale of coal despite the incriminating adverse material available on record indicates otherwise ? Heard the counsel for the parties and perused the record. So far as the first question is concerned, the learned Counsel for the Department submits that it was found by the assessing authority that the dealer made purchases worth 12,813.50 ton of rice husk, the sale price of which was declared including freight at Rs. 62,52,991.82. The purchase of rice husk was estimated by the assessing authority at Rs. 69,50,000. The said finding was modified by the first appellate authority who examined the relevant documents and found that the dealer -opposite party has purchased both rice husk and paddy husk. Accordingly, it bifurcated the said purchase in the light of the records in rice husk and paddy husk. The Tribunal without considering the record committed illegality in accepting the claim of the dealer that all the purchases represent the purchase of paddy husk.
(3.) SHRI Bharat Ji Agrawal, learned Senior Counsel appearing on behalf of the dealer -opposite party, supports the order of the Tribunal.;