Bhirgu Ji-Rice, Dal and Oil Mills, Jamaniastation, Ghazipur vs Commissioner of Trade Tax, U.P. Lucknow

Rajesh Kumar, J.—Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 13.04.2006 for the assessment year 199293.

The applicant was engaged in the business of rice, dal and oil mill. The dispute relates to the claim of exemption on the amount of Rs.1.25 lacs and Rs.3,21,150/. The assessing authority has levied the tax on the aforesaid two amounts on the ground that the applicant could not furnish requisite forms as provided under section 3D (7) of the Act. Being aggrieved by the assessment order, the applicant filed appeal before Deputy Commissioner (Appeals), who vide order dated 04.01.1999 allowed the appeal and exempted both the aforesaid amounts. The Commissioner of Trade Tax filed appeal before the Tribunal. The Tribunal by the impugned order allowed the appeal of the Commissioner of Trade Tax and restored the order of the assessing authority.

Heard Sri Ved Prakash Singh, learned counsel for the applicant and learned Standing Counsel.

Learned counsel for the applicant submitted that the applicant acted as commission agent on behalf of M/s Vijay Rice Mill, Varanasi holding eligibility certificate under section 4A of the Act and therefore, the sale made on their behalf is not liable to tax.

Learned Standing Counsel submitted that the submission of learned counsel for the applicant is not correct in respect of the amount of Rs.1.25 lacs. He submitted that the applicant had purchased foodgrains of Rs.1.25 lacs and had not sold as commission agent on behalf of M/s Vijay Rice Mill, Varanasi. But so far as the turn over of Rs.3,21,150/ is concerned, learned Standing Counsel is not able to dispute the contention of learned counsel for the applicant.

Having heard learned counsel for the parties, I have perused the impugned order of the Tribunal and the authorities below.

The assessing authority admitted that the applicant had sold foodgrains for Rs.3,21,150/ as commission agent on behalf of M/s Vijay Rice Mill, Varanasi holding eligibility certificate under section 4A of the Act. In my view, such turn over is not liable to tax. Admittedly, M/s Vijay Rice Mill, Varanasi was holding eligibility certificate under section 4A of the Act and, therefore, the sales of the manufactured product were not liable to tax. The applicant being the commission agent stepped on the shoes of M/s Vijay Rice Mill, Varanasi and therefore, the sales made by the applicant on behalf of M/s Vijay Rice Mill, Varanasi would not be liable to tax in the hand of the applicant. The State Government has also issued Government Order No VidhiNaiIkaiS.K.M.(9091)18/1018/Bikrikar, dated 10th January, 1990 in this regard, which read as follows:

So far as the amount of Rs.1.25 lacs is concerned, the assessing authority held that the applicant had purchased foodgrains but had not furnished Form 3C, therefore, in the absence of the form, tax has rightly been levied. The furnishing of the form for the claim of exemption has been held mandatory by the Apex Court in the case of CST Vs. Prabhu Dayal Prem Narain, reported in 1988 UPTC, 1204.

In the result, the revision is allowed in part. The order of the Tribunal is set aside so far as it relates to the levy of tax on the turn over of Rs.3,21.150/ but so far as the levy of tax on the turn over of Rs.1.25 lac is concerned, the order of the Tribunal is upheld and the Tribunal is directed to modify the order under section 58 (4) of the Act.