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The Commissioner Trade Tax,U.P.Lucknow v. Kamal Agencies - SALES/TRADE TAX REVISION No. 264 of 1997  RD-AH 942 (1 April 2005)
TRADE TAX REVISION NO.264 OF 1997
The Commissioner, Trade Tax, U.P, Lucknow. .Applicant
S/S Kamal Agencies, Saharanpur. Opp.party
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 24.09.1996 relating to the assessment year 1990-91.
Heard learned counsel for the parties.
Learned Standing Counsel submitted that the Tribunal has erred in law in holding that the provision of Section 10-B of the Act cannot be exercised as substitute to Section 21of the Act and the Deputy Commissioner is of the view that the Provision of Section 10-B of the Act cannot be exercised in a case where tax has been assessed at a lower rate is illegal. He further submitted that both Section 10-B and Section 21 of the Act operates in a different field and in different situation and gives separate powers to two different authorities. He submitted that power under section 21 of the Act can be exercised in a situation where after the assessment order, assessing authority, on the basis of material receives is of the opinion that any part has escaped assessment or the commodity has been assessed to tax at a lower rate, while under section 10-B of the Act, Commissioner of Trade Tax examines the legality and propriety of the order passed by the assessing authority on the basis of the material already available on record. He has power to examine the legality and propriety in respect of both relating to the escaped turnover and also in respect of the case where tax has been assessed at a lower rate. He submitted that the Tribunal has also erred in treating the outlet set, bottle-cum cane opener, knife-cum-scissor sharpener, Cheese slicer cut and chopped beat with blade as kitchen ware while they are liable to tax as cutlery and crockery and gas lighter has also been treated as kitchen ware, while it is liable to tax as an unclassified items.
Learned counsel for the dealer/opposite party relied upon the order of the Tribunal and submitted that power under section 10-B of the Act cannot be exercised when the commodity is taxed at a lower rate and the view of the Tribunal in this regard is correct. With regard to the rate of tax on the aforesaid items, he relied upon the order of the Tribunal.
I have perused the order of the Tribunal and the authorities below.
Section 10-B of the Act and Section 21 (1) of the Act reads as follows.
"10-B. Revision by commissioner.- (1) The Commissioner or such other officer not below the rank of Deputy Commissioner as may be authorised in this behalf by the State Government by notification may call for and examine the record relating to any order other than an order mentioned in Section 10-A passed by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety such order as may pass such order with respect thereto as he thinks fit.
(2) No order under sub-section(1) affecting the interest or a party adversely shall be passed unless he has been given a reasonable opportunity of being heard.
(3) No order under sub-section (1) shall be passed -
(a) to revise an order which is or has been the subject-matter of an appeal under section 9, or an order passed by the appellate authority under that section;
Explanation.- Where the appeal against any order is withdrawn or is dismissed for non-payment of the fee payable under Section 32 or for non-compliance of sub-section (1) of Section 9, the order shall not be deemed to have been the subject-matter of an appeal under section 9;
(b) before the expiration of sixty days from the date of the order in question;
(c) after the expiration of four years from the date of the order in question or after the expiration of two years from the date of commencement of Section 19 of the Uttar Pradesh Sales Tax (Amendment and Validation) Act, 1978 whichever is latter.
21. Assessment of tax on the turnover not assessed during the year.-(1) If the Assessing Authority has reason to believe that the whole or any part of the turnover of a dealer, from any assessment year or part thereof, had escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions has been wrongly allowed in respect thereof, the Assessing Authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary assess or re-assess the dealer to tax according to law."
I do not agree with the view of the Tribunal that power under section 10-B of the Act cannot be exercised where the tax has been assessed at a lower rate. Both section 10-B and Section 21 of the Act operates in different fields and contemplates separate powers to the authorities concerned. Under section 21 of the Act, on the basis of the material, which assessing authority receives, if he is of the opinion that any turnover has escaped assessment or tax has been assessed at a lower rate, he may proceed to initiate proceeding under section 21 and assess the tax accordingly, while under section 10-B of the Act power is contemplated to the Commissioner to review the order of the assessing authority in a situation if it is found illegal and improper on the basis of the material on record at the time of the passing of the assessment order. Power under Section 10-B of the Act can only be exercised on the basis of the material available at the time of passing of the assessment order and cannot be exercised on the basis of the material which is subsequently received after the assessment order. Under section 10-B of the Act order can be revised both in respect of the turnover as well as in respect of rate of tax. Power under section 10-B of the Act is not confined to the turnover alone, therefore, the view of the Tribunal in this regard is not justified.
So far as view of the Tribunal that outlet set, bottle-cum cane opener, knife-cum-scissor sharpener, Cheese slicer cut and chopped beat with blade and gas lighter are concerned, Tribunal has discussed their uses in detail in its order and held that these are the kitchen ware which are used inside the kitchen. Finding of the Tribunal in this regard is finding of fact. Learned Standing Counsel is not able to assail the findings recorded by the Tribunal. I do not see any reason to interfere with the view taken by the Tribunal. The order of the Tribunal in this regard is upheld.
Subject to the aforesaid observations, revision is liable to be dismissed.
In the result, revision fails and is accordingly, dismissed.
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