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Commissioner, Commercial Tax Uttarakhand, Dehradun Versus M/s. Rahis Ahmad, Timber Merchant

2015 (9) TMI 255 - UTTARAKHAND HIGH COURT

Applicability of relevant Notification during assessment Invocation of power under section 22 On basis of inter-state sale effected to buyers in State of Uttar Pradesh, transaction would not attract any tax This was done on basis of Form C made available by respondent dealer but later on, power under Section 22 of UP Trade Tax Act, 1948 was invoked and tax at rate of 2.5% was levied Tribunal disapproved resort to section 22 and allowed appeal Held that:-Respondent submitted that as o .....

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question as to whether word in notification is susceptible of only one meaning As noticed, present debate is that notification is capable of another meaning, then matter passes from realm of being undisputed to realm of dispute If that being so, revenue would not have authority to correct any kind of mistake but only mistake which is apparent on face of record Therefore, view taken by Tribunal does not suffer from any infirmity Decided against revenue. - Commercial Tax Revision No. 26 of .....

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in the State of Uttar Pradesh. The assessment was completed on the basis that in respect of the sales effected by the respondent assessee to the dealers in the State of Uttar Pradesh, on the basis of inter-state sale effected to the buyers in the State of Uttar Pradesh, a transaction would not attract any tax. Apparently, this was done on the basis of Form C made available by the respondent dealer. Later on, power under Section 22 of the Uttar Pradesh Trade Tax Act, 1948 (hereinafter referred t .....

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ounsel for the revisionist Shri Dhruv Agarwal. 4. Learned Additional Advocate General would submit, what has happened, is as follows: The State of U.P. was bifurcated into two under Section 9 of the Reorganization Act, 2000 and the State of Uttarakhand was born on 09.11.2000. On 07.02.2000 while the State was undivided, the State of Uttar Pradesh had issued a notification that in respect of sales against Form 3-B under the Act, the rate of tax would be 2.5%. Subsequently, the State of Uttar Prad .....

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tarakhand as the notification issued by the State of Uttar Pradesh after the formation of the State of Uttarakhand could have neither relevance nor efficacy yet it was seized upon by the officer to accept the return of the assessee in regard to the sale of the product as raw materials. In this context, it is relevant to notice the notification issued by the State of Uttarakhand dated 26.12.2000. It reads as follows: "Whereas, the State Government is satisfied that it is necessary so to do i .....

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ny such place of business of any raw material, processing material, consumable stores, spare-parts, accessories, components, fuel or lubricants and packing material to the dealer having his place of business in the State of Uttar Pradesh and possessing recognition certificate issued under Section 4-B of Uttar Pradesh Trade Tax Act, 1948 (Act No.XV of 1948), whose validity commences prior to November 9, 2000 for the use in the manufacturer of goods or in the packing of goods manufactured by him, .....

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make it very clear that the words therein "shall be calculated as such rate as would have been leviable on such sales against Form 3-B prescribed under the Act" would mean and can mean only the rate of tax as prescribed by the notification dated 07.02.2000 issued by the State of Uttar Pradesh, which would continue to apply irrespective of any subsequent notification which may be brought on by the State of Uttar Pradesh, the reason being any notification issued by the State of Uttar Pr .....

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not suffer from any infirmity. He would submit that it has been rightly held that resort cannot be made to Section 22. He would point out that the power under Section 22 of the Act can be invoked only in a case of a matter which does not require any debate and it cannot be resorted to in a case where it is not indisputable. In other words, if a dispute is raised, resort to Section 22 of the Act is impermissible in law. In this regard he drew our attention to the judgment of the Apex Court, repo .....

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t be decided in an undisputable manner, Section 22 has no application; and where a matter is disputable there can be no order under Section 22 of the Act. 9. The Deputy Commissioner (Appeal) held that Section 22 of the Act did not contemplate rectification of debatable issues and therefore, this was not a case where Section 22 of the Act applies. Similar was the view taken by the Tribunal. It has been submitted by the appellant that the notification considered in Hindustan Aluminium Corpn. case .....

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application of Section 22, the mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however does not cover cases where a revision or review of the order is intended. "Mistake" means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. "Apparent" means visible; capable of being seen; obvious; plain. It means "open to view visible, evide .....

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e Apex Court, reported in (1978) 2 Supreme Court Cases 542 (Bajaya versus Gopikabai And Another). It reads as follows: "Legislation by referential incorporation falls into two categories, (a) where a statute by specific reference incorporates the provisions of another statute as at the time of adoption; and (2) where a statute incorporates by general reference the law concerning a particular subject as a genus. In case (a) the subsequent amendments made sin the referred statute cannot autom .....

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26 & 27)" 8. Therefore, according to him, since it is a case of the statute referred to by way of reference, the subsequent notification even if it is issued by the State of Uttar Pradesh would be applicable. In other words, he would submit that what is relevant is the law applicable as of the date of the sale. As of the date of the sale he would submit in other words that the relevant notification would be the notification issued by the State of U.P. dated 30th October, 2001 and in res .....

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red in law in holding that the assessing authority cannot rectify its earlier order under Section 22 of the U.P. Trade Tax Act, by invoking the jurisdiction under Section 9(2) of Central Sales Tax Act?" 10. Therefore, we are only concerned with the question, whether the reviewing of the matter under Section 22 of the Act was permissible. 11. We have already noticed the facts. The assessment was completed, apparently, keeping in mind the notification issued by the State of Uttar Pradesh in 2 .....

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