NORTHERN MOTORS Vs. COMMISSIONER OF TRADE TAX

JUDGEMENT

(1.) Heard Sri Suresh Kumar Gupta, learned counsel for the revisionist-assessee and Sri B.K. Pandey, learned standing counsel for the respondent.

(2.) Briefly stated facts of the present case are that revisionist assessee is a trader of Motorcycle and spare parts. On 28.2001 a survey of business premises of the assessee was conducted by Special Investigation Branch of the Trade Tax Department in which several incriminating materials were found. During the course of assessment proceedings for the A.Y. 2000-01, Assessing Authority issued a show cause notice to the assessee requiring him to show cause on certain points based on certain adverse materials on record. The assessee submitted the reply which was not found satisfactory. The Assessing Authority denied benefit of exemption under Notification No.173, date 16.01.2001, under Sec. 4(c) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Act") with respect to sale of 360 vehicles and accordingly levied tax by Assessment Order dated 29.11.2001. Against this order the revisionist-assessee preferred First Appeal No.872 of 2001 (A.Y. 2000-01-U.P.) which was allowed by order dated 29.2002, passed by the Deputy Commissioner (Appeal) Trade Tax, Kanpur, on the ground that the Assessing Authority has not correctly determined the number of authorisation letters, no opportunity was afforded to the assessee for removal of defects found and no inquiry was made with respect to role of the assessee for actual sale of vehicles to persons different from those mentioned in the authorisation issued by depot in charge of Karmachari Kalyan Nigam. Aggrieved with this order, the assessee preferred Second Appeal No.905 of 2002 before the Member Trade Tax Tribunal, Kanpur, Bench 1st, Kanpur, which was dismissed by order dated 6.10.2007 and the order of remand was upheld. Aggrieved with the order of the Tribunal the assessee has preferred the present revision.

(3.) Learned counsel for the revisionist submits that the Government Order No.4061/29-3-2000-fu0-530/97, dated 16.1.2001, providing a condition to be attached with each authorisation letter for non transfer of vehicles by the Government Employee for five years was not within the knowledge of the assessee during the period in question i.e. 16.1.2001 to 31.02001 and when it came to the notice in the next assessment year, the assessee followed the conditions of the aforesaid Government Order. He further submits that in any case if the condition as aforementioned was not attached in the authorisation letter issued by the Nigam then the liability would be of the Nigam and not of the Assessee in view of the aforesaid Government Order. He, therefore, submits that the 1st Appellate Authority and the Tribunal have committed manifest error of law to remand the matter.