2010 (1) TMI 1122

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....g, stocking and supplying stone ballast to the railways. The assessee made two contract with the railways. One was for supply and other was a cartage. There are three issues in this case, firstly, the assessee is aggrieved by the inclusion of freight in its turnover and avers that the freight was being born by the railways. The second issue raised by the assessee is that the Tribunal has wrongly rejected the evidence produced by the assessee and should have accepted its evidence towards 3D evidence as additional evidence under section 12B. The third issue raised by the assessee is that the Tribunal has wrongly assessed the assessee as a manufacturer as the assessee is not a manufacturer within the meaning of section 2(e) of the U.P. T....

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....t of ballast is to be taken as turnover within the definition of the 'turnover'? (v) Whether the Tribunal rightly held that on similar circumstances the case of the applicant for the assessment years 1985-86 to 1988-89 and 1990-91 to 1997-98, the cost of supply of ballast only was taken as turnover, but in this year the Tribunal held that the same has no application in the assessment year in question? (vi) Whether the Tribunal was correct to hold that the decision of Aruna Trading Company v. CST [1993] UPTC 82 was not applicable to the facts of the present case? (vii) Whether the learned Tribunal was correct to draw adverse inference that the production of stone ballast made by the applicant was duly recorded in the books a....

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....view of clause 18 of the contract, which is on the record of the paper book, which records clearly that the fare and freight charges shall be born by the contractor. Thus, in view of this clause the Tribunal has rightly included freight in the turnover of the assessee. In so far as the second issue is concerned with regard to the evidence under section 3D, I am of the opinion, that the Tribunal was not correct in rejecting the four forms dated March 22, 1994. The assessee has produced these four forms before the first appellate authority, but these four forms had contained cuttings. The cuttings were thereafter rectified by the assessee by producing a certificate of the railways to show the correct position. The Tribunal should have l....