High Court of Judicature at Allahabad
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The Commissioner, Trade Tax, U.P. Lucknow v. S/S Anil Kumar Kailash Chandra Galla Vyapari Lalitpur - SALES/TRADE TAX REVISION DEFECTIVE No. 219 of 1997  RD-AH 349 (3 February 2005)
TRADE TAX REVISION NO.(219) OF 1997
TRADE TAX REVISION NO.(224) OF 1997
The Commissioner Trade Tax, U.P. ....Applicant
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 05.08.1997 for the assessment years 1986-87 and 87-88.
Brief facts of the case are that during the year under consideration dealer/opposite party (hereinafter referred to as "Dealer") claimed to have made certain purchases of food grains and oil seeds for and on behalf of Ex-U.P. Principal. In the original assessment proceedings it was claimed that the goods had been purchased on the instructions of Ex-U.P. Principal and the same were despatched outside the State of U.P. at the destination of Ex-U.P. Principal and therefore, the purchases were in the course of inter-State purchases and not liable to tax within the State of U.P. Claim of the dealer was not accepted and the tax was assessed on such purchases. Dealer filed the first appeals, which were allowed and the matter was remanded back to the assessing authority to examine the transactions afresh. Assessing authority after examination of the transactions held that such purchases were in the course of inter-State and following 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 not levied the tax on such purchases. It appears that on account of change of opinion, assessing authority passed the order under section 22 of the Act and levied the tax on such purchases alleged to have been made on behalf of Ex-U.P. Principal. Tribunal in appeals vide order dated 26.12.1996 set aside the order passed under section 22 of the Act on the ground that there was no mistake apparent on the face of record and the alleged mistakes required investigation of fact and argument, which was outside the purview of section 22 of the Act. It appears that after the order of Tribunal, assessing authority initiated the proceeding under section 10-B of the Act and vide order dated 06.05.1997 set aside the assessment order dated 22.05.1993 and remanded back the case to the assessing authority for passing the order afresh. Deputy Commissioner (Executive) was of the view that in the original assessment order claim was allowed on the purchases made on behalf of Ex-U.P. Principal but the mind has not been properly applied and accordingly, the order was set aside and the matter was remanded back. Against the said order, dealer filed appeals before the Tribunal. Tribunal allowed the appeals on the short point namely that the original orders merged in the orders passed under section 22 of the Act and secondly, against the orders passed under section 22 of the Act appeals were filed under section 9 and therefore, in view of the section 10-B (3) order could not be revised.
Heard learned counsel for the parties.
Learned Standing Counsel submitted that the order of Tribunal is illegal. He submitted that the original assessment order and order passed under section 22 of the Act were two separate independent orders and the original assessment order was to be read alongwith the order under section 22 of the Act. He further submitted that since order passed under section 22 of the Act was set aside, original assessment order stood revived in its original form and could be revised under section 10-B of the Act. He submitted that no appeal was filed against the original assessment order and, therefore, the bar of provisions of section 10-B (3) of the Act is not applicable. Learned counsel for the dealer relied upon the order of the Tribunal.
I have perused the order of Tribunal and the authorities below.
I find force in the argument of learned Standing Counsel. Both the assessment order passed under section 7 of the Act as well as the order passed under section 22 of the Act were the independent orders. It is true that after the order under section 22 of the Act original assessment order was to be read alongwith order passed under section 22 of the Act. Once the order under section 22 of the Act is set aside, assessment order under section 7 of the Act stood as it stood originally and could be rectified under section 22 of the Act. In the case of M/s Laxmi Ji Flour Mill Vs. CST, reported in 1987 UPTC, 328, this Court held that by rectification rectified order does not merge in to rectificatory order but both orders retain their separate identity and the rectified order has to be read with rectificatory order. It is also stated that admittedly, appeal under section 9 of the Act was filed against the order under section 22 of the Act and no against the original assessment order under section 7 of the Act and therefore, bar of section 10-B (3) of the Act did not apply and, therefore, order passed under section 7 of the Act dated 22.05.1993 could be revised under section 10-B of the Act. Order of the Tribunal to the contrary is illegal and liable to be set aside. Tribunal has not examined the order under section 10-B of the Act on merit. Therefore, matter is sent back to the Tribunal to decide the appeals afresh and to examine the validity of the order under section 10-B of the Act on other grounds.
In the result, both the revisions are allowed. Order of the Tribunal is set aside and the Tribunal is directed to decide the appeal nos.331 of 1997 and 332 of 1997 afresh. Since the matter is quite old, Tribunal is directed to decide the appeals expeditiously.
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