TMI Blog2007 (8) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the turnover at ₹ 79,255/-. The applicant preferred an appeal before the Assistant Commissioner (Judicial) Sales Tax, Saharanpur. The appeal was allowed in part vide order dated 19.6.1985. The Assistant Commissioner (Judicial) confirmed the rejection of account-books and estimated the turnover of bricks at ₹ 59,050/-. Aggrieved thereby the applicant filed a second appeal before the Sales Tax Tribunal, Saharanpur. The Tribunal vide order dated 5 ' August, 1988 has rejected the appeal and confirmed the order of the Assistant Commissioner (Judicial), Saharanpur. 3. As the applicant was unrepresented we had requested Sri Krishna Agrawal, learned Counsel, to assist the Court as amicus curie. Rival Submissions: 4. Sri Krishna Agrawal, learned Counsel submitted that in the process of manufacturing of bricks breakage is a normal incidence and, therefore, it ought to be allowed while calculating the number of bricks manufactured and sold. The Sales Tax Department(Now Trade Tax Department) as a matter of rule had been allowing 5% breakage while determining the turnover. According to him, even if the claim has not been specifically raised by the assessee, the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturing bricks every year. More so, if the assessee has been given breakage in the previous year, I am of the opinion that even if the assessee did not claim any breakage in the year in question it should have been granted to him and as such the question is answered in favour of the assessee and against the Revenue. Satish Chandra Manoj Kumar (supra) In this case the Court has held as follows: 3 ...Learned Counsel for the assessee then urged that the authorities have not allowed the breakage to the assessee in the total production of the bricks which according to him is generally given at the rate of 5%. The said fact has not been denied by the learned Counsel appearing on behalf of the Commissioner, Sales Tax and as such I am of the opinion that the asessee is entitled to the breakage allowance at the rate of 5% in the total production of both the years.... Bhoopal Singh and Brothers (supra) In this case the Court has held as follows: 3. The second submission made by the learned Counsel for the assessee is that the breakage has not been allowed by the Sales Tax Tribunal. From a perusal of the impugned order passed by the Sales Tax Tribunal it is clear that such a clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant records and after giving the appellant and the Commissioner a reasonable opportunity of being heard or, as the case may be, after following the procedure prescribed under Sub-section (1-A)- (a) in the case of an order of assessment and penalty,- (i) confirm or annul such order; or (ii) vary such order by reducing or enhancing the amount of assessment or penalty, as the case may be, whether such reduction or enhancement arises from a point raised in the grounds of appeal or otherwise; or (iii) set aside the order and direct the Assessing Authority to pass a fresh order after such inquiry as may be specified; or (iv)direct the Assessing Authority to make such inquiry and to submit its report within such time as may be specified in the direction or within such extended time as it may allow from time to time, and on the expiration of such time the Appellate Authority may, whether the report has been submitted or not, decide the appeal in accordance with the provisions of the preceding sub-clause; or (b) In the case of any other order confirm, cancel or vary such order: Provided that nothing in this sub-section shall preclude the Appellate Authority from dismissing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) or Sub-section (5) of Section 10 other than order under Sub-section (2) of that section summarily disposing of the appeal or by an order passed under Section 22 by the Tribunal may, within ninety days from the date of service of such order, apply to the High Court for revision of such order 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. (8)The High Court shall, after hearing the parties to revision, decide the question, of law involved therein, and where as a result of such decision, the amount of tax, fee or penalty is required to be determined afresh, the High Court may send a copy of the decision to the Tribunal for fresh determination of the amount, and the Tribunal shall thereupon pass such orders as are necessary to dispose of the case in conformity with the said decision. Rule 41. Submission of returns and assessment of tax. (5) If in respect of any one or more quarter or month, as the case may be,- the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for giving a reasonable opportunity to furnish the reply. If the dealer is aggrieved by the order of best judgment assessment so made by the Assessing Authority, it has been given a right to appeal under Section 9 of the Act. Under Sub-section (3) of Section 9 the Appellate Authority has been given very wide power. He has been empowered not only to confirm or annul the order appealed against but also to vary by reducing or enhancing the amount of assessment or penalty, whether such reduction or enhancement arises from a point raised in the grounds of appeal or not. He has further been empowered to set aside the order passed by the Appellate Authority and to direct the Assessing Authority to pass a fresh order after such inquiry as may be specified by him or may call for a report from the Assessing Authority and whether the report has been submitted or not, decide the appeal by exercising all the powers conferred upon him under any other clauses of Sub-section (3) of Section 9. If the dealer or any other person is aggrieved by the order passed under Section 9 of the Act such person can file an appeal under Section 10 of the Act before the Trade Tax Tribunal. The Explanation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and formulated. 8. In the case of Commissioner of Sales Tax, U.P. v. Mohan Brickfield, Agra (2006) 12 SCC 203, the Apex Court has dealt with the powers of the High Court in dealing with the revision filed under Section 11 of the Act and has held as follows: 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 , it was inter alia noted as follows: 8...It appears that the High Court ignored the provisions of Section 11 of the Trade Tax Act which confers limited jurisdiction in interfere with the order of the Tribunal only on the question of law, that too the said question of law is required to be precisely stated and formulated. Instead of deciding the question of law, the High court simpliciter re-appreciated the evidence any ignored the material documents maintained and produced by the assessee, that, is books of accounts bills and Form 'C submitted by it. In this view of the matter the impugned order cannot be sustained. 9. It may be mentioned here that a revision under Section 11 of the Act can be filed before this Court only if the case involves a question of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the order of the Tribunal and if a question of law has neither been raised in the memo of appeal, nor argued before the Tribunal at the time of hearing of the appeal, nor the Tribunal has given any finding on it, the same cannot be said to arise out of the order of the Tribunal and consequently this Court while deciding the revision cannot go into that question. 13. Having examined the scheme of the statutory provisions relating to making of the assessment, determination of tax and the appeal, and second appeal and the revision, we are of the considered opinion that this Court in exercise of powers under Section 11 of the Act is empowered only to decide the question of law involved in the revision and which should arise from the order of the Tribunal. 14. We have perused the assessment order as also the order passed by the Assistant Commissioner (Judicial) II, Trade Tax, Saharanpur and the order of the Tribunal, we do not find that the issue of breakage as claimed by the revisionist before this Court had ever been raised before any of the authorities including the Tribunal. Thus the question of allowing breakage does not arise out of the Tribunal's order. Cases ..... X X X X Extracts X X X X X X X X Extracts X X X X
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