2010 (5) TMI 779 - HC - VAT and Sales Tax

Summary

Issues:
1. Rejection of account books for not being shown at the time of survey
2. Justification of adverse view due to lack of information about brick kiln closure
3. Validity of the rate fixed by the Trade Tax Tribunal

Analysis:
1. The first issue pertains to the rejection of account books due to non-disclosure at the time of survey. The counsel for the revisionist conceded that this issue is settled against the assessee by a previous apex court decision. Therefore, the court did not adjudicate on this question, and it stands answered against the assessee.

2. Regarding the second issue, the court considered whether the Trade Tax Tribunal was justified in drawing an adverse view against the applicant for not providing information about the closure of a brick kiln. The revisionist claimed to have informed about the closure through a registered post. However, the court emphasized that despite no legal obligation to provide such information, when a survey shows otherwise, it becomes necessary for the revisionist to rebut the survey report with evidence of closure. Since no such evidence was presented, the Tribunal's decision based on the survey report was upheld.

3. The final issue concerns the validity of the rate fixed by the Trade Tax Tribunal for bricks. The revisionist had initially shown the rate as Rs. 235 per thousand, which was later increased to Rs. 380 per thousand by the Tribunal. The counsel argued that since the rate was reduced to Rs. 300 per thousand by the first appellate authority without any appeal from the Department, the Tribunal exceeded its jurisdiction by further enhancing it to Rs. 380 per thousand. The court agreed with this argument, stating that the Tribunal had no authority to revisit the rate once determined by the first appellate authority without any appeal. Consequently, the Tribunal's increase of the rate to Rs. 380 per thousand was deemed unsustainable in law.

In conclusion, the court partly allowed the revision by modifying the Tribunal's order to reflect the correct rate of bricks at Rs. 300 per thousand, in line with the decision of the first appellate authority.