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TMI Blog2007 (3) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... the black- smithy work was carried on by the dealer by involving the use of power. The dealer-opposite party is registered under the Khadi and Village Industries Board. Under the aforesaid notification the turnover of persons holding the certificate under Khadi and Village Industries Board was conditionally exempted. The condition to grant exemption was that the black-smithy work should be done without involving the use of power. According to the assessing authority the dealer-opposite party used the power in black-smithy and as such was not entitled to avail the benefit under the aforesaid notification. In appeal, the Assistant Commissioner (Judicial) by the order dated July 22, 1996 set aside the assessment orders and remanded the matter to the assessing authority for reconsideration with certain directions. It was found by the appellate authority that in the certificate dated October 31, 1987 generator was found at the business premises along with certain other machineries which could be operated only with the help of power. Further direction was that in the survey dated July 3, 1987 a diary (note book) was seized by the Surveying Officer. But the entries in the said diary were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of power are entitled to claim exemption vide entry No. 17 of the list mentioned in the said notification. There are two surveys dated Octo- ber 31, 1987 and July 3, 1989. Number of machineries, some of them mentioned as below were found in the survey dated October 31, 1987: 1. One balancing machine 6. H. P. 2. Three balancing machines Hand driven. 3. One drill machine "pedestal", (Globe make) with electric motor (Simens) 1 H.P. 4. One bench, grinder with electric motor ½ H.P. 5. One lathe machine with electric motor 2 H.P. 6. One compressor with ½ H. P. electric motor 7. One heating chamber 3000 watt. 8. One hand grinder (electric) 1/6 H.P. 9. One generator (Ramco make) 10 H.P. 10. One water circulating plant No electric connection was found at the time of the aforesaid survey. ½ H. P. The dealer-opposite party did not dispute the existence of the aforesaid machines, etc., including the generator in the assessment proceedings. It offered an explanation that the aforesaid plant and machineries were purchased by it to take a loan from the bank. It was submitted that even at the time of survey no electric power con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is registered with the department or not. If the said firm is in existence whether the seized diary has been owned by the said firm and the entries in the diary were taken into account by the assessing officer of M/s. National Generator or not. The burden to satisfactorily explain the incriminating material found at the time of survey is on the dealer. It is strange that the Tribunal has completely overlooked this part of the order of the first appellate authority. Tribunal has also not taken into account the reasons given by the first appellate authority for remanding the case for fresh assessment. The Tribunal has also not recorded any finding that the dealer-opposite party has been able to explain about the seized diary. The order of the Tribunal is of reversal. It was incumbent upon the Tribunal before reversing the order of the first appellate authority to consider and record the necessary findings on this aspect of the matter. The failure by the Tribunal to consider the above aspect, which is vital in the case, vitiates the order. Besides the above, the Tribunal has not given due weight to the facts found in the survey dated October 31, 1987. In that survey certain machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned in the notification. In the present case, the dealer has not been able to establish that it has carried on the black-smithy work by not involving the use of power. In the result the both revisions succeed and allowed and the order of the Tribunal is set aside. The order of the first appellate authority is restored with costs of Rs. 1,000 (rupees one thousand only)." [Against this decision the dealer filed appeals before the Supreme Court.] Civil Appeal No. 1538 of 2007. Appeal by special leave from the judgment and order dated May 20, 2005, of the Allahabad High Court in S. T. R. Nos. 1234 and 1304 of 1997. Manoj Goel, Shuvodeep Roy, W. Shafiq, Gopal Verma and Brij Bhushan Advocates for the appellant. Mrs. Vimla Sinha and Kamlendra Mishra Advocates for the respondent. The judgment of the court was delivered by Dr. ARIJIT PASAYAT J.-Leave granted. Challenge in these appeals is to the order passed by a learned single Judge of the Allahabad High Court disposing of several revision petitions filed by the respondent-Commissioner of Trade Tax, Uttar Pradesh, under the Uttar Pradesh Trade Tax Act, 1948 (in short, "the Act"). The factual position which is almost undisput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, where the limitation for making an application to the High Court under sub-section (4), as it stood immediately before the said date, has not expired, likewise apply for revision to the High Court within a period of ninety days from the said date. (3) Where an application under sub-section (1) or sub-section (3), as they stood immediately before the said date, was rejected by the revising authority or an additional revising authority on the sole ground that the period of one hundred and twenty days for making the reference as specified in the said sub-section (1), has expired, such applicant may apply for revision of the order made under sub-section (2) of section 10, to the High Court within sixty days from the said date on the ground that the case involves any question of law. (4) The application for revision under sub-section (1) shall precisely state the question of law involved in the case, and it shall be competent for the High Court to formulate the question of law or to allow any other question of law to be raised. (5) Every application for making a reference to the High Court under sub-section (1) or sub-section (3), as they stood immediately before the said date, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount, and the Tribunal shall thereupon pass such orders as are necessary to dispose of the case in conformity with the said decision. (8-A) All applications for revision of orders passed under section 10 in appeals arising out of the same cause of action in respect of the same assessment year shall be heard and decided together: Provided that where any one or more of such applications have been heard and decided earlier, if the High Court, while hearing the remaining applications, considers that the earlier decision may be a legal impediment in giving relief in such remaining applications, it may recall such earlier decisions and may thereafter proceed to hear and decide all the applications together. (9) The provisions of section 5 of the Limitation Act, 1963, shall, mutatis mutandis, apply to every application, for revision under this section. Explanation.-For the purpose of this section, the expression 'any person' includes the Commissioner and the State Government." The parameters of exercising power under the said provision were considered by this court in Commissioner of Sales Tax, U. P. v. Kumaon Tractors & Motors [2002] 9 SCC 379. It was, inter alia, noted a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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