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THE COMMISSIONER, TRADE TAX, U.P. LUCKNOW versus S/S SHYAM BABU GUPTA THOKA AND COMMISSION GALLA T.VYAPARI

High Court of Judicature at Allahabad

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The Commissioner, Trade Tax, U.P. Lucknow v. S/S Shyam Babu Gupta Thoka And Commission Galla T.Vyapari - SALES/TRADE TAX REVISION No. 157 of 1999 [2005] RD-AH 5674 (11 November 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.157 OF 1999

AND

TRADE TAX REVISION NO.158 OF 1999

AND

TRADE TAX REVISION NO.159 OF 1999

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

Versus

S/S Shyam Babu Gupta, Jalaun.       ....Opp.party

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

Hon'ble Rajes Kumar, J.

These three revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 07.02.1998 all relating to the assessment year 1995-96.

Dealer/opposite party (hereinafter referred to as "Dealer") was carrying on the business of food grain and oil seed. Dealer has started its business w.e.f. 15.03.1993 at Konch and applied for registration both under the U.P. Trade Tax Act and Central Sales Tax Act. The registration was issued for carrying on the business at Konch. Subsequently, on 04.02.1995 dealer had opened a branch at Etah, district Jalaun with the principal place of business at Konch. Necessary information was given to the officer concerned in this regard. Thereafter, dealer moved an application on 28.02.1995 before Trade Tax Officer, Mahoba  by which declared his principal place of business at Mahoba instead of Konch, the copies of said letters had been submitted to the higher authorities.  In this way according to the applicant w.e.f. 28.02.1995 there were  three places of business with the principal place of business at Mahoba.

Assistant Commissioner (Assessment), Trade Tax, Orai passed an order on 06.11.1995 under section 8C (2) of the Act, by which he had demanded the additional security of Rs.20 lacs. It appears that the dealer has challenged the jurisdiction of the Assistant Commissioner (Assessment), Trade Tax, Orai on the ground that he had declared the principal place of business at Mahoba in place of Konch and, therefore, Assistant Commissioner (Assessment), Trade Tax, Orai had no jurisdiction to pass any order. Assistant Commissioner (Assessment), Trade Tax, Orai vide its order dated  rejected the claim of the dealer. It appears that the dealer had not furnished the additional security demanded vide order dated 06.11.1995 under section 8C (2) of the Act and, therefore, Assistant Commissioner (Assessment), Trade Tax, Orai vide order dated 05.06.1996 passed an order under section 8C (7) (b) of the Act and cancelled the registration under the U.P. Trade Tax Act. Against all the three orders passed by Assistant Commissioner (Assessment), Trade Tax, Orai, dealer filed three appeals before Deputy Commissioner (Appeals), Jhansi. Deputy Commissioner (Appeals) Jhansi  vide order dated 02.07.1997 rejected all the three appeals. Dealer filed second appeals before the Tribunal. Tribunal by the impugned order dated 07.02.1998 allowed all the three appeals. Tribunal held that Assistant Commissioner (Assessment), Trade Tax, Orai had no jurisdiction to pass the order under section 8C (2) and 8C (7) (b) of the Act inasmuch as he had no jurisdiction after 28.02.1995, the day on which dealer had disclosed its head office/principal place of business at Mahoba in place of Konch.

Heard learned Standing Counsel. Inspite of the service of notice, no one appears on behalf of the dealer.

Present three revisions have been filed challenging the aforesaid order of the Tribunal. This Court vide order dated 26.04.1991 passed the following order :

"Heard Sri Surya Prakash, learned Standing Counsel for the Commissioner/revisionist. The respondent has not put in appearance inspite of service of notice.

Prima-facie case for stay is made out. The further operation of the impugned order dated 07.02.1998 passed by the Trade Tax Tribunal, Jhansi allowing the dealer's appeal against the cancellation of the registration of Shyam Babu Gutpa by Assistant Commissioner (Assessment), Trade Tax Orai vide order dated 25.06.1998 shall remain stayed."

Learned Standing Counsel submitted that the order of the Tribunal is patently erroneous and contrary to the Rules. He submitted that once on 04.02.1995 dealer had disclosed its principal place of business at Konch and branch office at Etah, district Jalaun,     further change of principal place of business dealer had to seek permission/approval from the Commissioner Trade Tax under Rule 6 (7) of the U.P. Trade Tax Rules  (hereinafter referred to as "Rules"). He submitted that the change of principal place of business leads to various consequences namely, transferring of jurisdiction from one officer to another officer and the transfer of files. He submitted that the dealer's own declaration of change of principal place of business would not give the jurisdiction to any of the officer and can not take away the jurisdiction of any officer unless a permission is granted by the Commissioner of Trade Tax under Rule 6 (7) of the Rules. In the circumstances,  the declaration of the dealer of the principal place of business at Mahoba can only be treated as a information that he had opened his branch office at Mahoba and accordingly, he submitted that the Assistant Commissioner (Assessment), Trade Tax, Orai had only jurisdiction in the matter  to proceed with the case of the dealer and the Tribunal has illegally held otherwise.

I have given my anxious consideration to the arguments of the learned Standing Counsel.

It is relevant to refer the Rule 6 (1), 6 (2) and 6 (7).

"Rule 6. Jurisdiction of Assessing Authority.

(1) If a dealer carries on business within the limits of jurisdiction of only one Sales Tax Officer, that officer shall be the assessing authority in respect of the dealer and the place where he carries on business shall be deemed to be his principal place of business.

(2) If a dealer carries on business within the jurisdiction of more than one Sales Tax Officer, he shall, within thirty days of the commencement of business declare one of the places of his business as his principal place of business in Uttar Pradesh and shall intimate all the Sales Tax officers within  whose limits of jurisdiction his places of business are situated. The Sales Tax Officer within whose limits of jurisdiction the principal place of business so declared by the dealer is situated, shall be the assessing authority in respect of such dealer:

Provided that in the case of any Department of the Central Government or of a State Government or of a Company, Corporation or Undertaking owned or controlled by the Central Government or by a State Government carrying on business within the limits of jurisdiction of more than one Sales Tax Officer, the Commissioner or any officer authorized by him in this behalf may order that each Sales Tax Officer within whose jurisdiction such Department, Company, Corporation or Undertaking is carrying on business shall be the assessing authority in respect of the place or places of business within the limits of the jurisdiction, or permit such Department, Company, Corporation or Undertaking to declare one place of business as the principal place of business in Uttar Pradesh, in which case the Sales Tax Officer within whose limits of jurisdiction such declared principal place  of business is situated shall be the assessing authority  in respect of such Department, Company, Corporation or Undertaking."

(7) No dealer, who has once made a declaration under sub-rule (2) or sub-rule (4) or who has failed to make such declaration within the time specified therein, shall be allowed to change the same or, as the case may be, to make a declaration except with the previous written permission of the Commissioner or any officer authorized by him in this behalf, and on such conditions as he may deem fit to impose."

Bare perusal of the aforesaid rules shows that if dealer carries on the business within the limit of jurisdiction of only one Trade Tax Officer, that officer shall be the assessing authority and the said place of business shall be deemed to be his principal place of business . Sub Rule (2) says if the dealer carries on the business  within the limits of jurisdiction of more than one Trade Tax Officer, he shall within thirty days of the commencement of business declare one of the place  of business as principal place of business and shall intimate the Trade Tax Officer  within whose limits of jurisdiction his place of business are situated. Trade Tax Officer under whose jurisdiction the principal place of business so declared is situated shall be the assessing officer. Rule 6 (7) says that no dealer who has once made a declaration under sub-Rule (2) or sub-Rule (4) shall be allowed to change the same as the case may be to make a declaration except with the previous written permission of the Commissioner or any officer authorised by him on his behalf and on such condition as he deem fit to impose. Therefore, in view of Rule 6 (7) for the change of the principal place of business, previous written permission of the Commissioner or any officer authorised by him is necessary. Reason for such written permission of the Commissioner or any other officer authorised by him appears to be logical because change of principal place of business lead to various consequences namely, taking over the jurisdiction from one officer and giving the jurisdiction to another officer, transfer of files etc.`

In the present case, dealer started business on 15.05.1993 at Konch. On 04.02.1995 he had opened a branch office at Etah, district Jalaun and Konch and had declared its principal place of business as required under rule 6(2) and thus further change of principal place of business from Konch to Mahoba required prior written permission of Commissioner of Trade Tax or any other officer authorised by him. It appears that no such permission had been granted by the Commissioner or any of the officer authorised by him.  Mere information about the change of principal place of business to the Trade Tax Officer concerned, was not sufficient. By the application of the dealer, jurisdiction could not be transferred and the officer could not cease with the jurisdiction, in the absence of written permission as required under Rule 6 (7).

For the reasons stated above, order of the Tribunal is liable to be set aside. Since the Tribunal  has not adjudicated the issue on merit and allowed the appeals only on preliminary ground of the jurisdiction, the matter is remanded back to the Tribunal to decide the appeals on merit.

In the result, revision no.159 of 1999 is allowed and the order of Tribunal dated 07.02.1998 arising from the order of the Assistant Commissioner (Assessment) Orai dated 30.04.1996 is set aside. Revision nos.157 and 158 of 1999 are allowed and the order of the Tribunal is set aside and the matters are remanded back to the Tribunal to decide the appeals on merit afresh.

Dt.10.11.2005

R./


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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