SHRISHTI TRADERS Vs. COMMISSIONER OF TRADE TAX

JUDGEMENT

(1.) THESE two revisions under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, 'the Act') are directed against the order of the Tribunal dated May 9,2006 relating to the assessment years 1999 -2000 and 2000 -01.

(2.) THE applicant was registered dealer under the U.P. Trade Tax Act, 1948 and was carrying on the business of buying and selling of PVC pipes and pipe fittings. For the assessment years 1999 -2000 and 2000 -01, applicant had filed the quarterly returns and disclosed the total turnover at Rs. 14,53,70,841.41 and Rs. 15,96,47,733.36 respectively. The applicant had not disclosed any taxable turnover and had not admitted any liability of tax. For both the assessment years, assessing authority, issued the notices to the applicant to appear. Show -cause notices were also issued requiring the applicant to show cause. The applicant could not file the list of the purchases before the assessing authority nor could get those purchases verified. The applicant could not appear before the assessing authority and could not produce the books of account and also could not file the reply to the show -cause notice. Having left with no option, assessing authority passed the ex parte orders and for the assessment year 1999 -2000 estimated the taxable turnover at Rs. 20 crores and for the assessment year 2000 -01 estimated the taxable turnover at Rs. 35 crores. It appears that the applicant had filed the applications under Section 30 of the Act for recalling of the ex parte assessment orders but the same had been rejected. However, we are not concerned about the said orders. Against the aforesaid two ex parte orders, applicant filed two appeals before the Joint Commissioner (Appeals), Trade Tax Range -I, Ghaziabad. Copy of the grounds of appeal is annexure No. 2 to the revision. Perusal of the grounds of appeal reveals that the applicant mainly pleaded that the show -cause notices have not been served upon the applicant and the assessment orders have been passed without giving proper opportunity. Before the first appellate authority, applicant had filed the list of the purchases. On the list being furnished, appellate authority asked the assessing authority to get the list verified from the various assessing authorities about the correctness of the details mentioned in the list. It appears that despite the time being granted on several occasions, report of the assessing authority could not be received. The Joint Commissioner (Appeals) vide order dated December 28, 2005 allowed the appeals and set aside the ex parte orders and remanded back the matter to the assessing authority to pass assessment orders afresh. It may be mentioned here that the applicant has also filed the appeals against the orders of the assessing authority rejecting the applications under Section 30 of the Act. Since the matter was remanded back to the assessing authority with the direction to pass assessment orders afresh, the appeals against the orders rejecting the application under Section 30 of the Act have been rejected being infructuous. Being not satisfied with the orders of the Joint Commissioner (Appeals), applicant filed two separate appeals before the Trade Tax Tribunal, Ghaziabad. The Tribunal by the impugned order, dismissed both the appeals. The Tribunal has justified the remand of the case by the first appellate authority. Further it appears that during the pendency of the appeals before the Tribunal, a letter from the Assistant Commissioner, Hapur bearing letter No. 1058 dated March 6, 2006 had been received, in which it was informed that the purchases shown by the applicant from M/s. R.S. Steel Centre, G.T. Road, Pilkhua is incorrect inasmuch as the said party had sold the entire goods to one party namely, M/s. Aditya Trading Company, Rawalpindi Garden, Ghaziabad and had not made any sales to M/s. Shrishti Traders, Sahibabad, district Ghaziabad. The said letter was brought to the notice of the Tribunal. The Tribunal held that before relying upon such information, the opportunity to explain the said letter is necessary and accordingly, justified the remand of the case.

(3.) THE learned Counsel for the applicant submitted that the applicant had made the entire purchases within the State of U.P. and the pipe and pipe fittings being liable to tax at the point of manufacturer or importer, applicant is not liable to tax on its sales. He further submitted that once in appeal purchase list giving the complete details of the parties, their registration number, quantity of goods purchased and the amount have been furnished and the first appellate authority has asked for the report under Section 9(3)(a)(iv) of the Act then whether the report has been received or not, first appellate authority was bound to decide the appeals on merit and should not remanded back the case to the assessing authority. The effect of the argument is that once the report is sought under Section 9(3)(a)(iv) of the Act even if the report is not submitted, appellate authority is ceased with the jurisdiction to remand the case. He further submitted that the Tribunal has illegally considered the letter of the Assistant Commissioner, Hapur dated March 6, 2006 which has been received after the decision in the appeals by the Joint Commissioner (Appeals). According to him such material cannot be considered and made basis for justifying the remand of the case without giving opportunity to the applicant and to this extent the order of the Tribunal is erroneous. The learned Standing Counsel relied upon the order of the Tribunal and the first appellate authority.