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2009 DIGILAW 3605 (ALL)

SHAMA TRADERS v. COMMISSIONER, TRADE TAX, U. P. , LUCKNOW.

2009-11-26

ANIL KUMAR

body2009
JUDGMENT ANIL KUMAR, J. - The present revision filed under section 11(1) of the U.P. Trade Tax Act, 1948 against the order dated June 21, 2003 passed by the Trade Tax Tribunal, Bench II, Lucknow in Second Appeal No. 108 of 1999 (1997-98). Heard Sri M. M. Dewan, learned counsel for the revisionist and Sri Sanjay Sareen, learned counsel for the respondent. The brief facts of the present case are that Shama Traders, Laharpur District Sitapur partnership - firm was dealing in purchase and sales of foodgrains at Laharpur, District Sitapur and is registered under the U.P. Trade Tax Act, 1948. For the assessment year 1997-98 the notices were issued to the revisionist by the assessing authority and after considering the reply submitted by the revisionist the assessing authority rejected the book version and enhanced the net turnover of the revisionist by means of the order dated October 16, 1998. The said order was challenged by the revisionist before the Deputy Commissioner (Appeal), Trade Tax, Sitapur which was partly allowed by the order dated March 23, 1999. The order dated March 23, 1999 passed by the appellate authority was challenged in Second Appeal No. 108 of 1999 under section 10(2) of the Act before the Trade Tax Tribunal, Bench II, Lucknow by means of an appeal (a copy of memorandum of appeal is annexed as annexure No. 3 to the revision) and the same was dismissed by order dated June 21, 2003 by the Tribunal. Aggrieved by the order dated June 21, 2003 the present revision has been filed before this court. Sri M. M. Dewan, learned counsel for the revisionist, has submitted that the order under challenge passed by the Tribunal is a unreasoned and cryptic order and the grounds which were taken by the revisionist in the memorandum of appeal have not been considered by the Tribunal while passing the impugned order dated June 21, 2003. Sri M. M. Dewan, learned counsel for the revisionist, has submitted that the order under challenge passed by the Tribunal is a unreasoned and cryptic order and the grounds which were taken by the revisionist in the memorandum of appeal have not been considered by the Tribunal while passing the impugned order dated June 21, 2003. So the said action on the part of the Tribunal was not in accordance with sub-rule (5) of rule 68 of the U.P. Trade Tax Rules, 1948, which is quoted hereinbelow : "(5) The judgment in appeal shall be in writing and shall state - (a) the points for determination; (b) the decision thereon; and (c) the reasons for such decisions." He further submits that the Tribunal being last fact-finding authority under the Act, it was obligatory for the Tribunal to adjudicate and decide all the grounds, which were taken by the revisionist in the memorandum of appeal by reasoned order and as such in the present case the order which is passed by the Tribunal is an unreasoned order the same cannot be sustained and liable to be set aside. Sri Sanjay Sareen, learned standing counsel, does not dispute that the Tribunal while deciding the revision has not dealt and decide all the grounds, which were taken by the revisionist before the Tribunal. I have heard learned counsel for the parties and perused the record. As per the settled proposition of law as laid down by this court in a catena of decision that the Tribunal being the last fact finding authority under the Trade Tax Act, so Tribunal is bound to consider all the grounds mentioned in the memorandum of appeal and to give its finding on all the ground raised therein. This court in the case of Janki Ent Udyog v. Commissioner of Sales Tax, U.P., Lucknow reported in [1996] STD 13 (All) held that : "3. The learned Tribunal has not considered all the grounds mentioned in the memo of appeal when the learned counsel for the appellant could not appear before it on the date fixed for hearing. If the learned counsel for the appellant had appeared then the Tribunal would have been justified to consider all those grounds which were pressed and argued by the learned counsel for the appellant. If the learned counsel for the appellant had appeared then the Tribunal would have been justified to consider all those grounds which were pressed and argued by the learned counsel for the appellant. But on ex parte consideration of the appeal the Tribunal has to record its findings on all the grounds of appeal mentioned in the memo of appeal. The Tribunal has thus not complied with the mandate of law enunciated by this court in several decisions." The abovesaid view was further retrieved in the case of Gopal Das Bhagwan Das v. Commissioner of Sales Tax, U.P., Lucknow [2000] STI 574 (All). Further in the case of Shiv Int Udyog v. Commissioner of Trade Tax [2008] 37 NTN 48 it has been held that : "Since the Tribunal has not adjudicated the question of rejection of books of account, the order of the Tribunal is vitiated and is liable to be set aside. Matter is remanded back to the Tribunal to decide the appeal afresh and adjudicate the question relating to the books of account and in case if Tribunal held that the books of account are unreliable and liable to be rejected, the Tribunal may proceed to estimate the turnover by way of best judgment assessment." From a perusal of the order which is under challenge, it is crystal clear that the Tribunal being the last fact finding authorities while deciding the appeal ought to have given its finding on all the grounds which has been taken by the revisionist before the Tribunal in its appeal but in the instant case in a very casual manner by way of non-speaking order without deciding and adjudicating all the grounds taken in appeal the Tribunal had dismissed the appeal by order dated June 21, 2003 as such the said order passed by the Tribunal cannot be sustained. For the foregoing reasons, the revision is allowed, the order dated June 21, 2003 passed by Trade Tax Tribunal, Bench II, Lucknow in Second Appeal No. 108 of 1999 is hereby set aside. The matter is remanded to the Trade Tax Tribunal, Bench II, Lucknow to decide the same in accordance with law after hearing the parties concerned, expeditiously, within a period of six months from the date of receipt of a certified copy of this order. The matter is remanded to the Trade Tax Tribunal, Bench II, Lucknow to decide the same in accordance with law after hearing the parties concerned, expeditiously, within a period of six months from the date of receipt of a certified copy of this order. However, it is made clear that this court has not adjudicated the claim of the revisionist on merits.