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DIOMAND CEMENT versus COMMISSIONER TRADE TAX, U.P. LUCKNOW

High Court of Judicature at Allahabad

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Diomand Cement v. Commissioner Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 1189 of 2005 [2005] RD-AH 4307 (18 October 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 55

Tax Revision no. 1189 Of 2005.

Diomand Cement, Jhansi. ... Applicant.

Vs.

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

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U. P. Trade Tax Act (hereinafter referred to as ''Act') is directed against the order of Tribunal dated 11.08.2005 relating to assessment year 1997-98 under the U. P. Trade Tax Act, by which, the application under Section 22 of the Act has been rejected.

The brief facts of the case are that the applicant is a manufacturer of Cement.  Before the Assessing Authority, applicant claimed that in the manufacturing of Cement 10 to 30 per cent Fly Ash had been used, therefore, in view of Notification no. 592 dated 28.2.1998, the turnover of such Cement is exempted from the tax with effect from 01.9.1998. The claim of the applicant had not been accepted by the Assessing Authority and the First Appellate Authority.  Applicant filed appeal before the Tribunal and a specific ground no. 37 had been taken in this regard.  Appeal had been filed on other several points.  Tribunal vide order dated 5.6.2004 decided the appeal.  It appears that ground no. 37 has not been considered therefore, applicant moved an application under Section 22 of the Act before the Tribunal on the ground that the ground no. 37 has not been considered which related to the turnover of Cement manufactured by using of Fly Ash.  Tribunal though, accepted that such ground has not been considered but rejected the application on the ground that only mistake apparent on the face of record could be rectified under Section 22 of the Act and in a case where lengthy argument is required and the issue is debatable, such mistake can not be rectified under Section 22 of the Act and accordingly dismissed the application.

Heard learned Counsel for the parties.

Learned Counsel for the applicant submitted that the Tribunal is bound to consider the grounds taken in the grounds of appeal, which has been argued at the time of hearing.  He submitted that the ground no. 37 of the grounds of appeal had been argued at the time of hearing of the appeal, which is clear from the written submissions.  Tribunal has not considered such ground, therefore, there was apparent mistake in the order of the Tribunal, which requires rectification.  He submitted that whether the ground no. 37 has been considered or not, is not debatable issue or requires any lengthy argument thus, Tribunal has erred in rejecting the application under Section 22 of the Act. In support of his contention, he relied upon the decision of this Court in the cases of Amar Nath Sheetal Prasad Vs. Commissioner of Trade Tax, reported in 1993 UPTC page 60 and M/S Kuldip Memorial Trust Vs. Commissioner of Sales Tax reported in STI, 1999 Allahabad High Court page 524.  Learned Standing Counsel submitted that under Section 22 of the Act only mistake apparent on the face of record, can be rectified, while consideration of ground no. 37 involves lengthy argument and investigation of fact, therefore, Tribunal has rightly rejected the application under Section 22 of the Act.  

I find substance in the argument of learned Counsel for the applicant.  It appears that the Tribunal has confused with the two different situations which arises in the present case one is whether non consideration of the grounds taken in the grounds of appeal, amounts to mistake apparent on the face of record and secondly, if the ground has been considered and has not been properly dealt with whether the rectification is possible. It is true that where the issue is considered, may not be properly considered and rectification is sought which needs lengthy argument, investigation of fact, it may not be a mistake which could be rectified, but if a ground has been raised in the grounds of appeal and argued before the Tribunal, but has not been considered in the order, it does not need any argument or investigation of fact.  In the present case, Tribunal itself observed that the ground no. 37 has not been considered without requiring any argument investigation.  It is settled principle of law that the Tribunal is duty bound to consider the grounds taken in the grounds of appeal and argued at the time of hearing of the appeal.  In my opinion, if such ground has not been dealt with in the order, it amounts to apparent mistake.  Reliance is placed on the decisions of this Court in the cases of Amar Nath Sheetal Prasad Vs. Commissioner of Trade Tax (supra) and M/S Kuldip Memorial Trust Vs. Commissioner of Sales Tax (supra), in which, similar view has been taken. In the circumstances, Tribunal is directed to decide the ground no. 37 of the grounds of appeal after hearing both the parties.

In the result, revision is allowed. Order dated 11.08.2005 is set aside.  Application under Section 22 of the Act is allowed and the Tribunal is directed to hear and decide the ground no. 37 of the grounds of appeal afresh after giving proper opportunity of hearing to the parties.

Dt:18.10.2005.

MZ/-


Copyright

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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