9911796707
TMI Blog2007 (3) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessment year 1987-88 (U. P. and Central). The dealer-opposite party carried on the business of manufacture and sale of cooler, generator and diesel engine, etc. It disclosed the gross turnover of Rs. 5,79,700 and net turnover as nil. No tax liability was admitted by the dealer in view of the Notification No. 7037/X- 71231, dated January 31, 1985. The benefit of the aforesaid notification was denied by the assessing officer on the ground that the black- smithy work was carried on by the dealer by involving the use of power. The dealer-opposite party is registered under the Khadi and Village Industries Board. Under the aforesaid notification the turnover of persons holding the certificate under Khadi and Village Industries Board was conditionally exempted. The condition to grant exemption was that the black-smithy work should be done without involving the use of power. According to the assessing authority the dealer-opposite party used the power in black-smithy and as such was not entitled to avail the benefit under the aforesaid notification. In appeal, the Assistant Commissioner (Judicial) by the order dated July 22, 1996 set aside the assessment orders and remanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal. The High Court in exercise of jurisdiction under section 11 of the U. P. Trade Tax Act can correct legal error only. It is not in dispute that the exemption vide Notification No. 7037, dated January 31, 1985 could be granted to such a unit which is registered with the Khadi and Village Industries Board as specified in the said notification. It is also not in dispute that only such blacksmiths who are manufacturing and servicing without involving the use of power are entitled to claim exemption vide entry No. 17 of the list mentioned in the said notification. There are two surveys dated Octo- ber 31, 1987 and July 3, 1989. Number of machineries, some of them mentioned as below were found in the survey dated October 31, 1987: 1. One balancing machine 6. H. P. 2. Three balancing machines Hand driven. 3. One drill machine pedestal , (Globe make) with electric motor (Simens) 1 H.P. 4. One bench, grinder with electric motor H.P. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year, i.e., 1987-88. The said finding of the Tribunal is wholly arbitrary and is based on irrelevant considerations. The order of the Tribunal cannot be sustained for the reasons more than one. The first appellate authority, namely, Assistant Commissioner (Judicial) by the order dated July 22, 1996 had remanded the matter back to the assessing officer for reconsideration with certain directions. In the survey dated July 7, 1989 a note book containing 12 pages, Sanhet No. 11 was also seized. The order of remand was passed on the ground that no proper enquiry was made by the assessing officer on the facts found at the time of the survey. The case of the dealer-opposite party was that the entries contained in the said diary were related to M/s. National Generator, a different firm. This aspect of the matter was not considered by the assessing authority. It has to be found out whether any firm in the name of M/s. National Generator is in existence and is registered with the department or not. If the said firm is in existence whether the seized diary has been owned by the said firm and the entries in the diary were taken into account by the assessing officer of M/s. National Generato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling the generator in the trade name of National . The Tribunal has preferred to place reliance upon a certificate issued by the Executive Engineer of U. P. Power Corporation. The said certificate is dated September 26, 1995. It was obviously obtained after the assessment order. Placing blind reliance upon a document which was produced by the dealer-opposite party at the appellate stage without making any investigation or enquiry about its genuineness and correctness is unwarranted in law. There is no explanation why the aforesaid certificate could not be filed before the assessing officer. An opportunity of rebuttal should have been given by the Tribunal or by the first appellate authority as the case may be before whom it was filed. The finding recorded by the Tribunal is vitiated and cannot be sustained. The dealer-opposite party is claiming benefit of the aforesaid notification and it is for the dealer to show that it fulfils all the conditions mentioned in the notification. In the present case, the dealer has not been able to establish that it has carried on the black-smithy work by not involving the use of power. In the result the both revisions succeed and allowed and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e questions have not been specifically indicated, the basic issues for determination were taken note of and the impugned orders were passed. We shall first deal with the power of the High Court in dealing with the revision petition. Section 11 of the Act reads as follows: 11. Revision by High Court in special cases. (1) Any person aggrieved by an order made under sub-section (4) or sub-section (5) of section 10, other than an order under sub-section (2) of that section summarily disposing of the appeal, or by an order passed under section 22 by the Tribunal may, within ninety days from the date of service of such order, apply to the High Court for revision of such order on the ground that the case involves any question of law. (2) Any person aggrieved by an order made by the revising authority or an additional revising authority refusing to state the case under this section, as it stood immediately before April 27, 1978, hereinafter referred to as 'the said date', may, where the limitation for making an application to the High Court under sub-section (4), as it stood immediately before the said date, has not expired, likewise apply for revision to the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every reference already made by such authority before the said date and pending before the High Court on the said date, shall be deemed to be an application for revision under this section and disposed of accordingly. (7) Where an application under this section is pending, the High Court may, on an application in that behalf, stay recovery of any disputed amount of tax, fee or penalty payable, or refund of any amount due, under the order sought to be revised: Provided that no order for the stay of recovery of such disputed amount shall remain in force for more than thirty days unless the applicant furnishes adequate security to the satisfaction of the assessing authority concerned. (8) The High Court shall, after hearing the parties to the revision, decide the question of law involved therein, and where as a result of such decision, the amount of tax, fee or penalty is required to be determined afresh, the High Court may send a copy of the decision to the Tribunal for fresh determination of the amount, and the Tribunal shall thereupon pass such orders as are necessary to dispose of the case in conformity with the said decision. (8-A) All applications for revision of ord ..... 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