FRIEND BRICKS INDUSTRY Vs. COMMISSIONER SALES TAX

JUDGEMENT

(1.) The present revision has been directed against the order dated December 30, 1987, passed by the Sales Tax Tribunal, Second Bench, Moradabad, for the assessment year 1982-83. The assessee is a manufacturer of bricks. According to the assessee it is the first year's production by the assessee and his account books have wrongly been rejected by the authority below. According to the assessee the account books have been rejected first on the ground of survey dated February 25, 1983 and secondly on the basis of the disclosed capacity of 4. 5 lacs which was found at the time of survey dated June 13, 1984. The last ground for rejection of the account books was that the production of the first class bricks is only 33 per cent while it should have been not less than 60 per cent. Aggrieved by the order of the Tribunal the assessee has come up in revision before this Court and has challenged the correctness of the order. The learned counsel for the assessee and the learned Standing Counsel have been heard. According to the learned counsel for the assessee, on the basis of survey dated February 25, 1983, the firing period has been increased by 15 days. According to the learned counsel for the assessee, the assessee's kiln business could not be run from January 19, 1983 to February 21, 1983. The assessee had informed about the closure of the kiln on account of the rains. A perusal of the Tribunal's order will go to show that the assessee had moved an application to the authority concerned on January 21, 1983. According to him due to the rains melting of kachcha bricks and fukai has been closed. The bhatta has been started again on March 22, 1983. The Tribunal has mentioned in its order that at the time of survey one Aijaj Ahmad, partner, was found present and he did not disclose that due to rains melting of kachcha bricks and fukai was closed. It could not be a ground to reject the account books of the assessee when the above fact has already been disclosed. These facts could be verified from the records. Moreover, the learned counsel for the assessee has placed before this Court the assessment order of the same assessment year relating to Janta Brick Works, Milak about which the arguments were also raised before the Tribunal. The Tribunal has mentioned in its judgment that the assessee has raised the question that the bhatta of Janta Brick Works, Milak, has also been closed during the period on account of rains. In the order of the assessing authority of that assessee it has been mentioned that the bhatta of Janta Brick Works, Milak, remained closed from January 19, 1983 to February 21, 1983 and the other bhattas of this area remained closed during this period on account of rains. Thus from the materials placed on records, it is apparent that the bhatta of the assessee remained closed from January 19, 1983 to February 21, 1983 and the finding of the Tribunal on this point and the rejection of the account books by the Sales Tax Tribunal on this ground cannot be sustained. The finding of the Tribunal on this ground is set aside. The second ground was about the capacity of the bhatta. The assessee had disclosed that the capacity of the bhatta was about 4. 5 lacs, while at the time of survey dated June 13, 1984, it was found that the capacity of the brick kiln was 5,25,000 bricks. The measurement was done at the time of survey. The learned counsel for the assessee stated that no change in the capacity has been done. This fact has also been accepted by one partner at the time of abovementioned survey as it will be clear from the assessment order of the Sales Tax Officer, even though the survey did not relate to the year in question. Therefore, the Tribunal has not committed any illegality in accepting the capacity of the brick kiln at 5. 25 lacs and rejecting the account books on that ground. The only contention of the learned counsel for the assessee is that on account of the less production of the first class bricks as given by the assessee, the account books have been rejected. According to the assessee it is the first year of his business and on account of dampness in the earth the production of the first class bricks could not be reached at 60 per cent which is the average figure. According to the assessee the production of 33 per cent first class bricks was made as it was the first year of production. The account books of the assessee have also been rejected on this ground. A perusal of the file will go to show that the assessee has started his brick kiln in the second session. The assessee has shown fukai period of 70 days only which has been increased to 85 days by the authorities below. It can safely be said that the production of first class bricks could not reach the target of 60 per cent. The production of 33 per cent first class bricks can be justified for the reasons disclosed by the assessee. Therefore, the account books could not be rejected on this ground. The result is that the account books could not have been rejected by the authority below on the basis of the survey dated February 25, 1983 and the firing period disclosed at 70 days is to be accepted. The account books could not have been rejected on the ground of non-production of first class bricks to the extent of 60 per cent. In view of these findings the case will have to go back to the Tribunal for deciding the case in view of the observations made above. The revision is allowed in part to the extent indicated above. The order of the Tribunal stands modified accordingly. The file shall go back to the Sales Tax Tribunal, Moradabad, for deciding the case in view of the observation made above. Petition partly allowed. .