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THE COMMISSIONER, TRADE TAX U.P. LKO. versus S/S ANIL KUMAR KAILASH CHANDRA GALLA VYAPARI LALITPUR

High Court of Judicature at Allahabad

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The Commissioner, Trade Tax U.P. Lko. v. S/S Anil Kumar Kailash Chandra Galla Vyapari Lalitpur - SALES/TRADE TAX REVISION No. 367 of 1997 [2005] RD-AH 348 (3 February 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.55

TRADE TAX REVISION NO.367 OF 1997

AND

TRADE TAX REVISION NO.369 OF 1997

The Commissioner Trade Tax, U.P. ....Applicant

Versus

S/S Anil Kumar Kailash Chandra Galla Vyapari, Lalitpur. ....Opp.party

................

Hon'ble Rajes Kumar, J.

These two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 26.12.1996 for the assessment years 1986-87and 87-88, by which Tribunal has set aside the order passed under section 22 of the Act.

Brief facts of the case are that during the year under consideration dealer/opposite party (hereinafter referred to as "Dealer")  had disclosed the purchases of food grains and oil seeds made for and on behalf of Ex-U.P. Principal. It was claimed that the purchases were made on the instructions of Ex-U.P. Principal and after making the purchases goods were despatched outside the State of U.P. at the destination of Ex-U.P. Principal, such purchases were in the course of inter-state and, therefore, not liable to tax within the State of U.P. Assessing authority appears to have not accepted the claim of the dealer and against the said order, appeals were filed. First appellate authority remanded  back the matter to the assessing authority for the examination of the transactions afresh. After remand of the case, assessing authority accepted the plea of the dealer in view of the decision of the Apex Court in the case of C.S.T Vs. M/S Bakhtawar Lal Kailash Chandra reported in 1992 UPTC, 971. Thereafter, proceedings under section 22 of the Act were initiated by the assessing officer  and vide orders dated 17.06.1994 assessment orders were rectified and the tax on the purchases made on behalf of Ex-U.P. Principal were levied. It was levied on the ground that while making the purchases, it was not disclosed to the seller that it was going to be despatched outside the State of U.P. to the Ex-U.P. Principal and the delivery of the goods have been taken inside the State of U.P. and in the sale vouchers the name of the dealer was mentioned. Assessing authority was of the view that the decision of the Apex Court in the case of C.S.T Vs. M/S Bakhtawar Lal Kailash Chandra (Supra) was not applicable. Against the said orders, dealer filed appeals before the first appellate authority, which were allowed and the matter was remanded back to the assessing officer. Dealer further filed appeals before the Tribunal. Tribunal allowed both the appeals and set aside the order passed under section 22 of the Act. Tribunal held that under section 22 of the Act mistake apparent on the fact of record can be rectified and those issues, which requires investigation of fact and where two opinions are possible can not be said to be mistake apparent on the face of record and is outside the purview of Section 22 of the Act. Tribunal held that the entire facts, which has been considered in the order passed under section 22 of the Act were before the assessing authority while passing the original assessment orders and after applying the law laid down by the Apex Court in the case of C.S.T Vs. M/S Bakhtawar Lal Kailash Chandra (Supra)  purchases were held in the course of inter-State purchases and accordingly, order passed under section 22 of the Act were held to be illegal and unjustified.

Heard learned counsel for the parties.

I do not find any error in the order of Tribunal. It is settled principle of law that under section 22 of the Act mistake apparent on the face of record can be rectified. The alleged mistakes, required investigation of fact and two opinions were possible thus was not mistake apparent on the record and could not be rectified.  On the facts and circumstances, view taken by the Tribunal appears to be justified.

In the result, both the revisions fail and are accordingly, dismissed.

Dt.03.02.2005

R./


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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