Jai Bharat Traders vs Commissioner of Commercial Tax and Another

Satish Chandra, J.—All the revisions have been filed u/s 57 of the U.P. Value Added Tax Act, 2008 against a common judgment and order dated June 29, 2012 passed by the Commercial Tax Tribunal, Lucknow for the abovementioned assessment years, in the following appeals, which are as under: (i) Appeal No. 201 of 2009

(ii) Appeal No. 202 of 2009

(iii) Appeal No. 203 of 2009

(iv) Appeal No. 204 of 2009

(v) Appeal No. 205 of 2009

(vi) Appeal No. 206 of 2009

(vii) Appeal No. 207 of 2009

(vii) Appeal No. 208 of 2009

(ix) Appeal No. 209 of 2009

(x) Appeal No. 210 of 2009

The brief facts of the case are that the revisionist is a registered dealer with effect from November 4, 2004. During the years under consideration, the revisionist was carrying the business of sale and purchase of dementholised oil and allied agro product in wholesale and in commission agency, on behalf of ex-U.P. principals, on the basis of written composite agreement of purchase and dispatch. The revisionist is maintaining all the form F.

On July 7, 2005 (wrongly mentioned in the impugned order as July 11, 2005), a survey was conducted at the business premises, from where various documents were seized. The assessing officer has passed the assessment order and made the additions, but the first appellate authority has set aside the assessment order and remanded the matter back to the assessing officer.

Being aggrieved, the revisionist has filed an appeal before the learned Tribunal, who has upheld the order of the first appellate authority, where the matter was remanded back to the assessing officer, to pass afresh order.

Not being satisfied, the revisionist has filed the present revisions before this court.

With this background, Sri N. C. Mishra, learned counsel for the revisionist, submits that all the facts were available before the learned Tribunal, but the learned Tribunal remanded the matter back to the assessing officer, for verification of the form F. He also submits that the learned Tribunal has directed that photocopies of the seized documents may be made available to the assessee. He further submits that the learned Tribunal might have decided this case on merits. For this purpose, he has relied oh the ratio laid down in the case of Nehru Steel Rolling Mills v. CST [1993] UPTC 407, where it was observed that a remand order should not be readily made, and it should only be made when for very strong reasons the authority cannot itself dispose of the matter on the merits.

Further, learned counsel for the revisionist has relied on the ratio laid down in the case of Gupta Suppliers Co. v. Commissioner of Commercial Tax, U.P. (Trade Tax Revision No. 244 of 2011, decided on September 30, 2011), where the order for remanding was set aside and the Tribunal was directed to decide the matter expeditiously on the merits.

Similarly, the learned counsel for the revisionist has relied on the ratio laid down in the case of Ashok Leyland Ltd. Vs. State of Tamil Nadu and Another, . He read out paras 37 and 83, which, on reproduction, read as under (pages 502 and 515 in STC):

By reason of sub-section (2) of section 6A, a legal fiction has been created for the purpose of the said Act to the effect that transaction has occasioned otherwise than as a result of sale.

On an analysis of the aforementioned provisions, therefore, the following propositions of law emerge:

(i) The initial burden of proof is on the dealer to show that the movement has occasioned by reason of transfer of such goods which is otherwise than by reason of sale. The assessee may file a declaration. On a declaration so filed an inquiry is to be made by the assessing authority for the purpose of passing an order on arriving at a satisfaction that movement of goods has occasioned otherwise than as a result of sale.

(ii) Whenever such an order is passed, a legal fiction is created. Legal fiction, as is well-known, must be given its full effect.

...

The particulars required to be furnished in form F clearly manifest that the proof required is as to whether the goods were factually transferred to the assessee himself or his branch office or his agent and not to any third party. Any other enquiry is beyond the realm of the assessing authority.

Lastly, he made a request that the impugned order may kindly be set aside.

On the other hand, Sri Sirajul Hasan, learned standing counsel justified the impugned order. He further submits that regarding ex-U.P. principals, where the agreement was executed, this fact is not clear as per the Tribunal''s order. He also submits that the purchases were made from about 400 firms on different dates and, prima facie, the firms are not looking genuine. The addresses of the firms are not clear. A few firms have denied the sale to the revisionist. In a few cases, the signatures are forged one. So, the learned Tribunal has rightly remanded the matter back to the assessing officer, for fresh adjudication.

After hearing both the parties and on perusal of the material available on the record, it appears that the revisionist is engaged in the sale and purchase of dementholised oil and allied agro product. During the survey, photocopies of few loose papers were recovered, specially regarding the purchase of 100 kg. dementholised oil from Dinesh Matti and Shivkumar Kothi and the same are not found clear. For the inter-State sale, a few form F were found not genuine. So, a fresh examination and verification of these facts/documents is required.

Needless to mention that the learned Tribunal is the final fact-finding authority as per the ratio laid down in the following cases:

(i) Kamala Ganapathy Subramaniam and Another Vs. Controller of Estate Duty, ;

(ii) CTT v. Durga Dal Mill [2006] 3 VLJ 152 (All);

(iii) CTT v. Suraj Dal Mill [2005] 37 STJ 547 (All); and

(iv) Anjani Coal Agency v. CTT [2005] 37 STJ 294.

In the instant case, when the facts are not clear and documents seized at the time of survey need verification, then there is no reason to interfere with the impugned order passed by the learned Tribunal, who has just remanded the matter back to the assessing officer, to re-examine the issue and pass afresh order.

In the peculiar facts and circumstances of the case, the impugned order passed by the learned Tribunal is looking reasonable. So, the same is hereby sustained along with reasons mentioned therein. Moreover, when the learned Tribunal has remanded the matter back, no question of law emerges from the impugned order.

In view of the above, all the revisions are dismissed. No cost.