9911796707
TMI Blog2010 (5) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... ons are answered in favour of the Revenue and against the assessee and it is held that in the absence of any positive evidence to establish that the assessee was working on commission, the freight even if charged separately is not liable to be excluded from his turnover. - 465,484,485 of 2003 - - - Dated:- 17-5-2010 - PANKAJ MITHAL , J. PANKAJ MITHAL J. Heard Sri Bipin Pandey, learned counsel for the revisionist and Sri Shree Krishna Agrawal, learned counsel for the assessee. The Revenue has filed all the above three revisions against identical orders of the Tribunal holding that the inward freight is not part of the turnover as the assessee is not a commission agent. The revisions pertain to the assessment years 1997-98, 1998-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee acted as commission agent, the freight would be part of the turnover. The appeal of the assessee to the Deputy Commissioner (Appeals) was partly allowed on March 22, 2002 and the tax liability imposed was reduced to some extent. On further appeal to the Trade Tax Tribunal, the amount of inward freight was excluded from the turnover and the appeal was allowed by the impugned order dated January 6, 2003 reducing considerably the tax liability of the assessee further. The submission of the learned standing counsel is that as the assessee had failed to adduce any evidence to establish that he is working as a commission agent for the brick-kiln owners, the assessing authority as well as the first appellate authority has rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rick-kiln owners, either in their own names or for purchas through assessee as agent. In the absence of such evidence, finding of the Tribunal that the assessee acted as an agent of brick-kiln owners was held to be perverse and unsustainable. It was accordingly held liable to be disturbed in revision. A similar view was also taken by another Judge of this court in the case of Commissioner of Trade Tax v. Ramapati Tewari Jainath Tewari [2005] UPTC 76 relying upon the case of Sunil Kumar Coal [2003] UPTC 1036. In the aforesaid case the assessee failed to prove that it acted as a commission agent. No evidence was adduced that it purchased coal on behalf of the brick kiln owners. Therefore merely for the reason that freight was being charged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf for further sale. There is absolutely no evidence to show that the purchases of coal were on behalf of the principals, i.e., brick-kiln owners and that freight was actually paid by them or if paid by the assessee has subsequently been released from them. Accordingly, in the absence of evidence on record to substantiate the claim of the assessee that he is working as a commission agent for supply of the coal, in my opinion the conclusion is inevitable that the assessee has failed to prove himself to be a commission agent and as such freight would be part of the turnover and the finding contrary to it of the Tribunal is perverse and cannot be sustained. Sri Shree Krishna Agrawal, learned counsel for the assessee has placed reli ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
