Point of Law: Once the provisions of the VAT Act are applicable upon the respondents to claim any benefit or non-taxable, the respondents are required to produce all the documents, forms, books of account, etc. as prescribed under the Act.

JUDGMENT :

1. Heard Shri A.C. Tripathi, learned Standing Counsel for the revisionist and Shri Naveen Chandra Gupta, learned counsel for the opposite party.

2. These revisions have been filed against the judgements & orders dated 04.03.2016 passed by the Commercial Tax Tribunal (Bench-I), Ghaziabad in Second Appeal Nos. 261, 259 & 260 of 2015 for the assessment year 2010-11, in which following common question of law has been framed:-

"Whether on the facts & in the circumstances of the case, Commercial Tax Tribunal was legally justified in holding that the opposite party is not a dealer and not liable for payment of tax under the provisions of the U.P. Value Added Tax Act?"

3. Learned Standing Counsel submits that it is admitted case between the parties that the opposite party has taken SLR on lease in the passenger train run by the Northern Railways for transporting/carrying goods of other dealer(s)/person(s) from the station of origin to the station of destination, on which the persons, whose goods are transported, paid the money for such transport. In other words, the opposite party was treated as Railway Container Contractor. Once this fact is admitted between the parties, the opposite party was treated as Railway Container Contractor, then the provisions as provided under the Act and the Rules were required to be fulfilled, i.e., the Railway Container Contractors were required to get themselves registered and follow the procedure for maintaining books of account, relevant forms, as prescribed therein, were required to be filled up and maintained, but the opposite party had, at no stage during the assessment or at the appellate stage, produced any document to discharge its liability. Once the dealer has failed to discharge its liability as provided under the Act, the Tribunal was not justified in accepting the version of the dealer and allowing the appeal by deleting heavy tax imposed upon the opposite party. He prays for allowing the revision.

4. Per contra, learned counsel for the opposite party supports the orders passed by the Tribunal and submits that there is no iota of evidence to show that any taxable goods were found in possession of the dealer so that levy of tax can be justified. At this juncture, he further refers to section 3(8) of the VAT Act providing incident of tax to be levied on possession of taxable goods by the opposite party. He further submits that the primary burden has not been discharged by the Department. Therefore, levy of tax upon the opposite party cannot be justified. He further submits that as per rule 63(4) of the U.P. VAT Rules, records were summoned. On perusal of the records by the Tribunal, no material was found and therefore, the Tribunal has rightly allowed the appeal of the dealer and discharged the liability of tax. He further submits that the Tribunal has rightly interpreted the provisions of the Act and deleted the tax. In support of his submissions, he has placed reliance on the judgement of the Hon'ble Supreme Court in State of Haryana & Others Vs. Sant Lal & Another reported in (1993) 4 SCC 380 (paragraph no. 19) and prays for dismissal of the revision.

5. Heard learned counsel for the parties and perused the records.

6. Admittedly, all the respondents in these revisions have taken SLR's on lease in the Passenger Trains from Northern Railways for transporting/carrying the goods of the person(s) or dealer(s) from the station of origin to the station of destination and charged transportation charges. It is also admitted between the parties that the said activity of the respondents fall or can be classifiable as a Railway Container Contractor as described under section 2(h)(ix) of the U.P. VAT Act as "dealer", as person, who carries on in Uttar Pradesh, a business of distributing goods, directly or indirectly, for cash or deferred payment or for commission, remuneration or other valuable consideration. Section 17 of the VAT Act provides for registration of dealers. Sub-section 6(a) thereof