TMI Blog2019 (8) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... able cannot be a decisive or relevant factor. The fact that certain machineries though old may be in working order would not be relevant for the purpose of subjecting the same to tax - In the facts of the present case, the revenue has not only failed to adduce any evidence to establish that the machineries sold by the assessee were new, rather it is admitted to the assesssing officer, that the machineries were old. Therefore there appears no basis on which the same could have been subjected to higher rate of tax @ 8%, treating the same to be new - answered in the negative i.e. in favour of the asseesee and against the revenue. Whether upon the facts and circumstances of the case, the amount received for providing tender forms to customers be termed as sale within the meaning of Section 3 F of the U.P. Trade Tax Act? - HELD THAT:- Considering the fact that the present revision is for A.Y. 2000-01 (UP) and 19 years have passed since then, the question is purely academic. Therefore, question of law as framed in the memo of revision, is being returned and answered, leaving it open to the assessee to raise that issue in any year when that issue is an alive issue i.e. where the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2000-01 (UP). By that order, the Tribunal has dismissed the appeal filed by the assessee and confirmed the order of the first appeal authority. Various additions arising therefrom with respect to: (i) purchases from unregistered dealers (under Section 3 AAAA); (ii) sale of used machinery (at higher rate of 8% as against 5% disclosed by the assessee); (iii) sale of tender forms (since the tax liability had been admitted); (iv) the transfer right to use machinery (under Section 3F) and; (v) transfer of property involved in the execution of works contract have been made under the provisions of U.P. Trade Tax Act, 1948 (hereinafter referred to as the Act). 2. The present revision has been pressed on the following questions of law: (A) Whether upon the facts and circumstances of the case, the imposition of tax on purchases made from unregistered dealers can be subjected to tax within the meaning of Section 3 AAAA of the Uttar Pradesh Trade Tax Act, despite the disclosed production has been accepted by the assessing authority? (B) Whether upon the facts and circumstances of the case, the Tribunal was justified in confirming the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Second, it has been submitted that the assessee had sold used machinery which was old, discarded and/or obsolete worth ₹ 49,09,481.15/-. It admitted tax liability @ 5% under Notification Entry No.101 dated 15.01.2000 as amended from time to time. 7. On the other hand, the assessing authority completely erred in taxing the same as machineries and spare parts under the same notification. In view of the fact that the machinery sold by the assessee were not new but old, the assessment made and the taxing @ 8% has been contested to be wholly unfounded. 8. On this issue, learned Standing Counsel would submit that though the assessee claimed machinery to be old, he did not produce the vouchers or other documents or evidence to establish its claim. Accordingly, the assessing officer and the authorities have not erred in taxing those goods @ 8%. 9. Having heard learned counsel for the parties and having perused the record, in the first place, the assessing officer had himself observed in the assessment order that the machineries sold by the assessee were old, mill roller, mill turbine, reduction gear box ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve issue i.e. where the assessee may have been saddled with the liability by means of the assessment order but it may not have charged or deposited the tax amount. 15. As to question of law no. D, it has been submitted by learned counsel for the assessee that the assessee had only acted in conformity with the directions issued by the federation of the Cooperative Sugar Mills and consequently leased out certain equipments to a sister concern. Therefore, there was no intent to sell any goods to any person or to transfer any property in goods to any person. As cooperative mills exist for the common purpose and work under the directions of the federation, merely because the assessee temporarily transferred certain equipments on the directions issued to it, it may not give rise to a tax liability. 16. Alternatively, it has been submitted that of the total amount of ₹ 23,20,631/- received by the assessee against leasing of equipments, ₹ 14,21,642/- had been refunded by the assessee to M/S Kisan Cooperative Sugar Factory Ltd. Sarsawan. Therefore, the benefit of that amount should have been given to the assessee. 17. Here, agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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