- (1.) R. K. GULATI, J. This sales tax revision is directed against the order dated September 27, 1989 passed by the Sales Tax Tribunal, Bench 1, Vaianasi, in Second Appeal No. 26 of 1988. Learned counsel for the revisionist-assessee assailed the order under revision on different grounds including that the determination of the firing period as 145 days was without any material on record; the capacity of brick kiln was wrongly determined at 3. 5 lacs; the consumption of coal considered by the Tribunal was excessive and lastly the estimated production of bricks was not sustainable.
(2.) I have considered the above submissions carefully and have also heard the learned Standing Counsel for the respondent. It may be pointed out that the assessee had disclosed 45 days and 61 days respectively in the first season and the second season as its firing period during which the brick kiln was operated in the year in question. The assessing authority rejected the disclosed firing period and determined it as 120 days. In appeal the first appellate authority without disturbing the firing period determined by the assessing authority proceeded to estimate the production of the brick taking the capacity of the brick kiln into consideration. When the matter came to be considered in second appeal before the Tribunal, it took the firing period at 145 days for the entire year. In this connection the Tribunal observed as under : ". . . . . . . . . . . As regards the burning admitted in first season, from the survey dated May 24, 1985, it appears that at the time of survey about 40-45 thousand of unburnt bricks were available, still pathai was going on. Since pathai was going on in full swing the version given by the assessee that the operation of kiln ceased in the first season May 31, 1985 does not appear to be correct. The increase made by the assessing authority in the burning period in the first season accordingly appears to be correct. In our opinion, from material on record, it appears that the kiln had operated for about 145 days in the whole year. " It is apparent from the above that the Tribunal upheld the rejection of disclosed firing period because of the outcome of the survey dated May 24, 1985. However, when the Tribunal came to determine the period for which the brick kiln was operated, it only remarked that from the material on record it appeared that brick kiln was operated for about 145 days in the whole year. The material which the Tribunal had in mind on which that finding was based has not been disclosed in its order. The learned Standing Counsel on being questioned was unable to refer to any material on record from which the finding of the Tribunal could find support. As already stated, the assessing authority itself was of the opinion that the brick kiln was operated for 120 days only but the Tribunal increased the firing period to 145 days that too without any discussion or indicating the material on the consideration of which it recorded its findings. This Court in its revisional jurisdiction ordinarily does not interfere with the findings of fact recorded by the Tribunal but where the finding is not supported by any evidence it is equally well-settled that it cannot be sustained. It is also worth noticing that in the passage extracted above from the Tribunal's order, the Tribunal categorically stated that the increase made by the assessing authority in the firing period in the first season appeared to be correct. But with regard to the second season the Tribunal did not discuss the issue at all and in a bald manner held that the brick kiln was operated for about 145 days in the whole year. The finding recorded in such a manner cannot be upheld.
(3.) NOW coming to the capacity of the brick kiln, it may be observed that the assessing authority had determined the capacity of the brick kiln at 4. 5 lakhs. According to the assessee the capacity of the brick kiln was 2. 79 lakhs of bricks. The first appellate authority took the capacity of the brick kiln at 4 lakh bricks. However, the Tribunal determined the capacity of the brick kiln at 3. 5 lakhs of bricks with the following observations : " The measurements relating to depth and the internal circle of the kiln is given in assessing officer's diary, which were considered by Shri Kinjavadekar. However, Sri Kinjavadekar has considered only 18 columns for the purpose of calculation of the capacity of the kiln, whereas at the time of survey by STO (SIB) on February 4, 1985, 22 columns were actually found at the kiln. According to calculation given by the assessing officer, capacity of the kiln comes to about 4 lacs. However, since each column can accommodate 18,000 bricks, the capacity of the kiln should be fixed at 3. 5 lacs. " It is apparent that the Tribunal look the capacity of the brick kiln at 3. 5 lakhs because in the survey report dated February 4, 1985, 22 columns were actually found at the brick kiln. Learned counsel for the assessee referred to the aforesaid survey report, a photo copy of which has been filed as annexure 6 to the revision, and pointed out that in the survey report in question 22 columns have nowhere been referred. On the contrary the survey report mentions about 18 payas and 17 raddha amongst other things. The learned Standing Counsel fairly conceded that in the survey report, relied upon by the Tribunal, there is no mention of 22 columns. The contention of the assessee that the findings of the Tribunal on this score are based on misreading of the survey report appears to be correct. In these circumstances the order of the Tribunal about the capacity of the brick kiln cannot also be upheld.;