TMI Blog2018 (11) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same in the operative part of the order would not vest any authority with the Tribunal to examine that issue de novo. That issue may have become open if upon remand, the Tribunal may have reached a conclusion that one of the two machines was new. In that event, the cost of the remaining machinery may have been required to be examined to determine whether that was negligible. That is clearly not the case here. It would remain open to the revenue to examine whether the unregistered dealer/seller claimed by such assessee was genuine and not a mere pretence or false claim made to evade any further inquiry. Once the assessee failed to establish the identity of the seller and the genuineness of the bill documents against which such purchases were claimed to have been made the assessee prevented the revenue from making any further inquiry to determine whether the machinery in question had been or had not been used or acquired for use anywhere else, before being purchased by the assessee. Therefore, the Tribunal has rightly rejected the claim made by the assessee. Revision dismissed - decided against the assessee. - Sales/Trade Tax Revision No. - 264 of 2007 - - - Dated: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the law laid down by this Court ? 5. Upon remand, the Tribunal has returned findings to the effect that the value of the disputed machines was not negligible. Its finding is based on the decision of this Court dated 25.05.2006 in Trade Tax Nos. 334 of 2000 and 220 of 2005 referred to above. The Tribunal has also recorded two other findings - the assessee was unable to establish it had purchased the disputed machines from the dealer as disclosed by him. Then, the Tribunal has further reached a conclusion that the assessee has failed to discharge the burden to establish that the disputed machines had not been earlier put to use or had not been acquired for use before being sold to the assessee. 6. On such reasoning, the Tribunal has dismissed the appeal filed by the assessee and thus rejected the claim of exemption made under Section 4-A of the Act. 7. Learned counsel for the assessee submits, in the first place undisputedly, the assessee had set up a new rice mill unit against total investment of ₹ 2,51,000/-. The investment made in the two disputed machinery being electric motors was of ₹ 41,000/- only. There being no dispute to the fact that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of M/S Progressive Components (Pvt.) Ltd. Agra Vs. Commissioner of Trade Tax reported in 2000 UPTC 131 . 11. Learned Standing Counsel on the other submits that the Tribunal has not committed any error in rejecting the appeal inasmuch as though it may not be denied that in the operative part of the earlier order dated 25.05.2006 passed in Trade Tax Revision Nos. 334 of 2004 and 220 of 2005, a direction had been issued to the effect that the Tribunal may record a finding whether the disputed investment of ₹ 41,000/- may be termed as negligible, at the same time, in view of the specific finding recorded in that order that the disputed amount of ₹ 41,000/- against the total amount of ₹ 2,51,000/- was not negligible, the Tribunal had not committed any error in recording a finding to that effect. 12. Then, it has been submitted that in exemption matters arising in the context of a fiscal statute, a strict interpretation is to be made as to eligibility to exemption. No concession may be claimed at that stage. Since the assessee in this case has not been able to establish his eligibility to exemption, no benefit may be had to the principle laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remains undisputed that the assessee could not substantiate the claim of having made purchase from M/s R.K. Electricals inasmuch neither the registration numbers of the seller were found recorded on the bill nor had the payment been made through banking channel as may have offered any inquiry to be made by the revenue authorities as to the genuineness of the sale. 16. The argument that purchases made from unregistered dealer also be eligible for computation of fixed capital investment has been resisted on the ground that in the present case, no such plea has been raised. Even in the case of unregistered dealer the identity would remain to be examined. In the present case, that identity having not disclosed, the argument is not available to the assessee. It has been thus submitted that the Tribunal has not erred in rejecting the genuineness of the purchases claimed by the assessee and or the documents relied upon by the assessee. 17. Last, it has been submitted that over and above the findings recorded by the Tribunal that the machineries were old, once the assessee failed to establish the identity of the seller of the machines, he effectively prevented any further inquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the affidavit of such selling dealer, the assessee was unable to substantiate the claim of genuineness of such selling dealer. 23. As to the alternative plea set up by the assessee as to the entitlement of exemption against purchases made from an unregistered dealer it is seen that such a case was never set up by the assessee on facts. A plea to that nature would essentially be have to be specifically set up at the appropriate stage before the fact finding authority. Even in that case, it would remain open to the revenue to examine whether the unregistered dealer/seller claimed by such assessee was genuine and not a mere pretence or false claim made to evade any further inquiry. 24. In the facts of the present case, no such plea had been ever raised. It therefore does not become available to the assessee at this stage. There is no principle if the identity of the registered dealer/seller is not disclosed or established by the assessee, benefit may be given treating that purchase to be of new machinery made from unregistered dealers. 25. Once the assessee failed to establish the identity of the seller and the genuineness of the bill documents against which such purchases ..... X X X X Extracts X X X X X X X X Extracts X X X X
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