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COMMISSIONER OF TRADE TAX versus M/S BHAGWAN DAS UMA KANT

High Court of Judicature at Allahabad

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Commissioner Of Trade Tax v. M/S Bhagwan Das Uma Kant - SALES/TRADE TAX REVISION No. 3089 of 2004 [2006] RD-AH 19566 (20 November 2006)

 

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.22

TRADE TAX REVISION NO.3089 OF 2004

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

Versus

M/S Bhagwan Das Uma Kant,

Pemeshwar Gate, Firozabad.             ....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 23rd June, 2004 relating to the assessment year 1994-95, arising from the proceeding under section 22 of the Act.

Dealer/opposite party (hereinafter referred to as "Dealer") was carrying on the business of bajra and sarson. Both bajra and sarson are declared commodities under section 14 of Central Sales Tax Act (hereinafter referred to as "Central Act") under Entry 4(b) under notification no.ST-II-1226/XI-9(94)/91-U.P. Act 15/48-Order-92, dated 31.03.1992 bajra was liable to tax @ 3% under U.P. Trade Tax Act and sarson was liable to tax @ 4% vide notification no. ST-II-5787/XI-10(1)/80-U.P.Act-15/48-Order-81, dated 07.09.1981. Assessing authority vide order dated 25.02.1997 passed the order under section 9(2) of the Central Act and on the turn over of bajra and sarson at Rs.8,73,944/- and Rs.5,49,921/-  levied the tax @ 3% and 4% respectively. Assessing authority vide order dated 11.06.1998 passed under section 22 of the Act and levied tax on the turn over of bajra @ 6% and on sarson @ 8%, inasmuch as turn over were not covered by Form "C". Dealer filed appeal before the Deputy Commissioner (Appeals), Trade Tax Mainpuri. Before the first appellate authority dealer filed Form "C" relating to the turn over of bajra for Rs.3,36,455.65p.. The said Form "C" was accepted by the first appellate authority and the benefit was allowed. However, for Rs.5,37,488.35p. relating to the turn over of bajra and for Rs.5,49,921.50p. relating to the sarson Form "C" could not be filed but the first appellate authority has justified the levy of tax on the aforesaid turn over @ 3% and 4% respectively in view of section 8 (2-A) of the Central Act.  First appellate authority, however, allowed the adjustment of tax paid under the U.P. Trade Tax Act. Being aggrieved by the order of the first appellate authority, Commissioner of Trade Tax filed appeal before the Tribunal. Tribunal by the impugned order dismissed the appeal. Tribunal held that in view of section 8 (2-A) of the Central Act and in view of notification no.3407, dated 01.10.1994 the turn over of bajra and sarson were liable to tax @ 3% and 4% respectively.

Heard learned counsel for the parties.

Learned Standing Counsel submitted that notification no.3407 dated 01.10.1994 is applicable to those cases where commodity is liable to tax @ 4% and is not applicable to a case where the commodity is liable to tax less than 4%. Thus, the aforesaid notification is only applicable in the case of sarson and not in the case of bajra. He further submitted that the provision of section 8 (2-A) of Central Act is not applicable to the declared commodity, inasmuch as section 8 (2-A) of the Central Act has no over riding effect over section 8 (2-A) of the Central Act and, therefore, so far as the turn over of bajra without declaration form is concerned, was liable to tax @ 6%. Learned counsel for the dealer relied upon the order of the Tribunal.

Having heard learned counsel for the parties,  I have perused the order of the Tribunal and the authorities below.

There is no dispute that bajra and sarson both are declared commodities under section 14 of the Central Act. Bajra was liable to tax @ 3% under U.P. Trade Tax Act vide notification no.ST-II-1226/XI-9(94)/91-U.P. Act 15/48-Order-92, dated 31.03.1992 and the sarson was liable to tax @ 4% under notification no. ST-II-5787/XI-10(1)/80-U.P.Act-15/48-Order-81, dated 07.09.1981. The notification no. TT-II-3407/XI-9(116)/94-Act-74/56-Order-94, dated 01.10.1994 is applicable to the commodity which is liable to tax @ 4% and not to the commodity which is liable to tax less than 4%. Therefore, it was applicable only to the turn over of sarson and not bajra. Thus, the view taken by both the authorities below levying the tax on the turn over of sarson @ 4% in the absence of Form "C" under the notification no.ST-3407 dated 01.10.1994 is upheld.

So far as rate of tax on the turn over of bajra is concerned, notification no.ST-3407, dated 01.10.1994 is not applicable, inasmuch as it was liable to tax @ 3%. Provisions of section 8 (2-A) of the Central Act is not applicable to the declared commodity. It has over riding effect over section 6 (1-A) or sub-section (1) or clause (b) of sub-section (2) of section 8 and not to sub-section (2-A) of the Central Act. Thus, the turn over of bajra in the absence of declaration form was liable to tax under section 8 (2) of the Central Act twice to the rate of tax applicable under the U.P. Trade Tax Act namely @ 6%. The aforesaid view is supported by the decision of this Court in the case of CTT Vs. M/s Elgin Mills Co. Ltd., Kanpur, reported in 2005 UPTC, 800.

For the reasons stated above, order of the Tribunal levying the tax on the turn over of sarson @ 4% is upheld and the order of the Tribunal so far as the levy of tax on the turn over o     f bajra @ 3% is concerned, is set aside. It is held that the turn over of bajra without Form "C' was liable to tax @ 6% under the Central Act.

In the result, revision is allowed in part. Order of the Tribunal is set aside in part and the Tribunal is directed to pass appropriate order under section 11 (8) of the Act.

Dt.20.11.2006

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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