# Awadh Timber Merchant And Commissioner Agent Semri Road Revisionist v. Commissioner Trade Tax U.P. Gomti Nagar Lucknow

- **Citation:** (2019) 4 ILRA 831
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-05
- **Case number:** Trade Tax Revision No. 269 of 2010
- **Bench:** Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadh-timber-merchant-and-commissioner-agent-semri-road-revisionist-v-44955
- **Pages:** 3

## Headnote

A. Tax Law - Central Sales Tax Act, 1956:
Section 8(2), 14(ia); Notification dated
23.11.1998 - TIF-2-2372/XI-9 (251)/97UP Act 15/48-order 98

The sale of coal was made without requisite
Form-C as prescribed under the Act. Coal is a
declared commodity u/s 14 (ia) and the rate of
tax as per notification is 4%. Therefore,
revisionist can be taxed at twice the rate
applicable i.e. 8% and not beyond that. (Para
11, 12, 13)

Trade Tax Revision allowed. (E-4)

Present revision is against order dated
20.05.2010, passed by Commercial Tax
Tribunal, Faizabad Bench, Faizabad.

## Text

4 All. M/s Awadh Timber Merchant and Commission Agent Semri Road Vs. Commissioner Trade Tax U.P. Gomti NagarLucknow 831
(2019)12 ILR A831

REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.12.2019

BEFORE
THE HON'BLE PIYUSH AGRAWAL, J.

Trade Tax Revision No. 269 of 2010

M/S
Awadh
Timber
Merchant
And
Commissioner Agent Semri Road
 ...Revisionist
Versus
Commissioner Trade Tax U.P. Gomti
Nagar Lucknow ...Opposite Party

Counsel for the Revisionist:
N.C. Mishra

Counsel for the Opposite Party:
C.S.C.

A. Tax Law - Central Sales Tax Act, 1956:
Section 8(2), 14(ia); Notification dated
23.11.1998 - TIF-2-2372/XI-9 (251)/97UP Act 15/48-order 98

The sale of coal was made without requisite
Form-C as prescribed under the Act. Coal is a
declared commodity u/s 14 (ia) and the rate of
tax as per notification is 4%. Therefore,
revisionist can be taxed at twice the rate
applicable i.e. 8% and not beyond that. (Para
11, 12, 13)

Trade Tax Revision allowed. (E-4)

Present revision is against order dated
20.05.2010, passed by Commercial Tax
Tribunal, Faizabad Bench, Faizabad.

(Delivered by Hon'ble Piyush Agrawal, J.)

1. The present revision has been
filed by the assessee against the order
dated 20.5.2010 passed by Commercial
Tax Tribunal, Faizabad Bench, Faizabad
in Second Appeal No. 120 of 2008
(Assessment Year 1999-2000) under
Central
Sales
Tax
Act
(hereinafter
referred to as the Act).

2. It has been averred that the
revisionist is engaged in the business of
manufacturing and sale of veneer (chiran)
as well as trading of coal. The business
premises of the revisionist was surveyed
on 27.12.1999, in which some loose
papers were found and it has also been
found that the revisionist had made sale of
coal without Form-C on the basis of
which the tax was imposed @ 10 % on
the sale of coal and best judgment
assessment was made. Feeling aggrieved
by the said order, the revisionist preferred
a first appeal, which was partly allowed
and taxable turnover was reduced and
thereafter the second appeal was filed
before the Tribunal. The Tribunal by the
impugned has confirmed the tax on the
sale of coal without Form-C @ 10 %.
Hence the present revision has been filed.

3. During pendency of the present
revision,
the
revisionist
filed
an
amendment
application,
which
was
allowed by this Court by order dated
25.4.2019. The revisionist by way of
amendment has raised the following
questions of law for consideration of this
Court:-

"1.
Whether
tribunal
was
justified in law to impose tax @ 10 % on
sale of coal against the provisions of
section 8 (2) of CST Act."

4. Heard Sri N.C. Mishra, learned
counsel for the revisionist and learned
Standing Counsel.

5. The counsel for the revisionist
submits that he only want to press the
832 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid question of law. He argued that
coal is special importance goods and
declared commodity under Section 14 (ia)
of the Act and as per Section 8 (2) (a) of
the Act, no tax can be imposed twice the
rate of tax levy on coal in Uttar Pradesh.

6. The Standing Counsel rebutting
the submission of the learned counsel for
the revisionist, has submits that the order
passed by the tribunal is justified.

7. This Court has perused the
Record. The relevant part of Section 8(2)
(a) and Section 14(ia) of the Act is quoted
below for ready reference:-

8. (1) .....

(2) The tax payable by any dealer on
his turnover in so far as the turnover or
any part thereof relates to the sale of
goods in the course of inter-State trade or
commerce not falling within sub-section
(1)--

(a) in the case of declared
goods, shall be calculated 3 [at twice the
rate] applicable to the sale or purchase of
such goods inside the appropriate State;

(b) in the case of goods other
than declared goods, shall be calculated at
the rate of 5 [ten per cent.] or at the rate
applicable to the sale or purchase of such
goods inside the appropriate State, 6
[whichever is higher; and

(c) in the case of goods, the sale
or, as the case may be, the purchase of
which is, under the sales tax law of the
appropriate State, exempt from tax
generally shall be nil, and for the purpose
of making any such calculation under
clause (a) or clause (b), any such dealer
shall be deemed to be a dealer liable to
pay tax under the sales tax law of the
appropriate State, notwithstanding that he,
in fact, may not be so liable under that
law.

14. Certain goods to be of special
importance
in
inter-State
trade
or
commerce.--

It is hereby declared that the
following goods are of special importance
in inter-State trade or commerce:--

.....

(ia) coal, including coke in all
its forms, but excluding charcoal:

8. Bare perusal of Sections clearly
shows that the declared goods sold
without Form -C can be subjected to tax
twice as the rate of tax applicable in the
appropriate State. Section 14 (ia) of the
Act also declared coal as a special
importance goods i.e. coal is a declared
goods.

9. By Notification- TIF-2-2372/XI-9
(251)/97-UP Act 15/48-order 98, dated
23.11.1998 the State of Uttar Pradesh has
prescribed the rate of tax on the sale of
coal @ 4 %. The aforesaid notification
has been amended from time to time but
the rate of tax on the sale of coal has
remained unchanged.

10. The said fact in regard to rate of
tax has not been disputed by the learned
Standing Counsel.

11. The records reveals that the
dispute in relation to sale of coal has
admittedly been made without requisite
Form -C as prescribed under the Act and
it is not disputed that the coal is a
declared commodity under Section 14 (ia)
of the Act and rate of tax as per the above
notification is only @ 4 % which is
leviable in the State of Uttar Pradesh.
4 All. Sri Ajay Gupta Vs. Commissioner of Income Tax (Appeals) Meerut & Anr.
833

12. In view of above provision
of the Act as well as rate of tax applicable
at the relevant time, the tax on the sale of
coal within the said limit was @ 4 %. In
view of Section 8 (2) (a) of the Act, sale
of coal made by the revisionist without
Form-C can be taxed at twice as the rate
applicable in State i.e. @ 4 +4 =8 % and
not above that.

13. In such circumstances, the
Tribunal was not justified in imposing the
tax on the sale of coal without Form-C @
10 % treating the same under Section 8
(2-b) as undeclared goods.

14. In the results, the impugned
order is modified to that extent. The
question of law is answered accordingly
in favour of the assessee and against the
department.

15. The revision is allowed.
----------
(2019)12 ILR A833

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2019

BEFORE
THE HON'BLE BHARATI SAPRU, J.
THE HON'BLE ROHIT RANJAN
AGARWAL,J.

Income Tax Appeal No. 357 of 2010

Sri Ajay Gupta ...Appellant
Versus
Commissioner of Income Tax (Appeals)
Meerut & Anr. ...Respondents

Counsel for the Appellant:
Sri Shubham Agrawal, Sri Parv Agarwal

Counsel for the Respondents:
C.S.C., Sri Krishna Agrawal, Sri Shubham
Agarwal, Sri D. Awasthi
A. Tax Law - Income Tax Act, 1961:
Section 131, 132, 132(4A), 142(1), 158BC, 250, 263 - Presumption provided u/s
132 (4A) is not in absolute terms but is
subject to corroborative evidence.

The presumption u/s 132 (4A) is not provided
in absolute terms and the word used is "may"
and not "shall", as such the revenue has to
corroborate the entries made in the seized
documents before presuming that transactions
so entered were made by the assessee. (Para
11, 12)

Appeal partly allowed. Matter remitted
back to Tribunal. (E-4)

Precedent followed:

1. CIT, Kanpur Vs. Shadiram Ganga Prasad,
2010 UPTC 840 (Para 11)

Present appeal is against order dated
12.03.2010, passed
by
Income
Tax
Appellate Tribunal, New Delhi.

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. This appeal under Section 260-A
of the Income Tax Act has been filed by
the assessee challenging the order of the
Income Tax Appellate Tribunal Delhi
Bench "A" New Delhi (hereinafter called
as
ITAT)
dated
12.03.2010,
partly
allowing the appeal of the department.

2. This appeal was admitted on
22.11.2010 on the following questions of
law:

"1. Whether the presumption
under Section 132(4A) of the Income Tax
Act can be raised in the assessment
proceeding?

2. Whether apart from from
section 132(4A) of the Income Tax Act,
the burden to explain the documents