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2010 (1) TMI 1122 - ALLAHABAD HIGH COURTInclusion of freight in assessee's turnover and avers that the freight was being born by the railways Whether the Tribunal has wrongly rejected the evidence produced by the assessee and should have accepted its evidence towards 3D evidence as additional evidence under section 12B? Whether the Tribunal has wrongly assessed the assessee as a manufacturer as the assessee is not a manufacturer within the meaning of section 2(e) of the U.P. Trade Tax Act? Held that:- In so far as the first issue is concerned with regard to cartage, the issue is conclusively established against the assessee. In view of clause 18 of the contract, which is on the record of the paper book, which records clearly that the fare and freight charges shall be born by the contractor. Thus, in view of this clause the Tribunal has rightly included freight in the turnover of the assessee. In so far as the second issue is concerned with regard to the evidence under section 3D, the Tribunal was not correct in rejecting the four forms dated March 22, 1994. The assessee has produced these four forms before the first appellate authority, but these four forms had contained cuttings. The cuttings were thereafter rectified by the assessee by producing a certificate of the railways to show the correct position. In so far as the third issue is concerned the assessee has not violated the provisions of section 12(2) of the Act and he is not a manufacturer, he is only a contractor, who is carrying the stone ballast to the railways. He is not involved in any manufacturing activity, therefore, the Tribunal is not correct in holding that the assessee was guilty of violation of the provisions of section 12(2) of the Act.
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