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TMI Blog2010 (5) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... isions identical questions of law have been raised which are as under: (i) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that the opposite partydealer is a commission agent despite the dealer has failed to submit any evidence or contract to prove it? (ii) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that the inward freight is not part of the turnover, on the basis that it was separately charged in the bills, without verifying as to whether the dealer had paid freight in own account or not? There is no dispute to the fact that the assessee is carrying on business of coal and is registered under the U.P. Trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turnover including the inward freight. In the absence of any material that the assessee had made purchases on behalf of the brick kiln owners the Tribunal is not justified in exempting the inward freight from the turnover of the assessee on presumption that he is a commission agent. Sri Shree Krishna Agrawal, learned counsel for the assessee, has defended the order of the Tribunal first by contending that the finding of the Tribunal that the assessee is not the principal purchaser but a commission agent is a finding of fact and since the inward freight has been shown and charged separately in the bills, it has rightly been excluded from the turnover of the assessee. The aforesaid both the questions sought to be raised have been considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to be excluded from the turnover. It was also observed that charging freight separately in the invoices is only a device to reduce the price of coal purchased. The aforesaid both the decisions were followed in two later decisions, i.e., Commissioner of Trade Tax v. Lakhi Chand Ram Kumar [2010] 33 VST 249; [2009] UPTC 79 and B.K. Enterprises v. Commissioner of Trade Tax reported in [2010] 33 VST 240 (All); [2009] UPTC 82. In the instant case the assessing authority has recorded a clear and specific finding that the assessee has failed to produce any account for import of coal from outside the State. He has not even produced any bilti for import or supply of coal to establish purchase on behalf of brick kiln owners. The inward freight ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Samiti reported in [2009] UPTC 572 wherein practically on the identical facts and circumstances, this court dismissed the revision of the Revenue holding that the finding assessee was a commission agent was a finding of fact and since the freight was charged separately in invoices, it will not form part of the turnover. However, the facts of the aforesaid case would not be applicable in the present case, inasmuch as, the finding in this connection recorded by the Tribunal is perverse as it is not based on any material coupled with the fact that the Tribunal has not cared to decide the controversy by setting aside the finding recorded by the assessing authority. In view of the above, the questions of law raised in these revisions are answ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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