TMI Blog2016 (12) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... ined - decided in favor of AO. - S.B. Sales Tax Revision Petition No. 107, 108, 109, 110, 112, 113/2007 - - - Dated:- 4-11-2016 - Jainendra Kumar Ranka, J. For the Petitioner : Tanvi Sahai, R. B. Mathur For the Respondent : Devendra Kumar ORDER 1. All these instant petitions are directed against order dt 14.9.2005 passed by the Rajasthan Tax Board, Ajmer, and since the issue raised being identical in all these petitions, with the consent of the learned counsel for the parties, all the petitions are being disposed of by this common order. Assessment years involved are 1995-96 to 1999-2000. 2. The respondents are manufacturers of Oil and the assessee contended that they were entitled to the benefit of Sales Tax Incentive Scheme 1989, however, the Assessing Officer taking into consideration the judgment of apex court in the case of State of Rajasthan Another v. Gopal Oil Mills Another 1999 (4) SCC 368, was of the view that as observed by the apex court, the assessees were not entitled to any benefit after 4.4.1994 and were only entitled to such benefits as per incentive scheme upto 3.4.1994 of the goods and accordingly show cause notice was issued. An expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d finality on identical case, the same cannot be re-agitated. He in this regard regard relied upon Ambica Industries v. CCE (2009) 20 VST 1 SC, Mohd. Harun Anr. v. Nissar Ahmed Ors. (2008) 5 WLC 8 (Raj-DB), Seth Banarsi Dass Gupta v. CIT (1978) 113 ITR 817 Del., Birla Cotton Spinning Weaving Mills Ltd. v. CIT (1980) 123 ITR 354 Del. and Suresh Desai Associates v. CIT (1998) 230 ITR 912 Del. 5.1 Learned counsel also contended that both the Appellate Authorities had correctly come to the conclusion that the benefit was available to the assessee and it is a finding of fact reached by both the Appellate Authorities and the same is required to be upheld. 5.2 Learned counsel for the assessee also contended that interest u/s 58 of the RST Act, 1994 is not leviable and relied on J.K. Synthetics Ltd. v. CTO (1994) 94 STC 422 (SC). 6. Learned counsel for the Revenue in reply to the contentions of the learned counsel for the respondents contended that the cases decided by this court in M/s. R.C. Oil Industries and M/s Bajrang Bali Oil Industries (supra), were also of District Nagaur, and when this court has already passed an order, question of transferring the present petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted in that even if DLSC would have been approached or now approached, it cannot decide contrary to what the Hon'ble Supreme Court had already decided? 8. Admittedly, the judgment of this court in the case of M/s. R.C. Oil Industries and M/s Bajrang Bali Oil Industries (supra), is on the self same question and admittedly the instant petitions now under challenge as well as the above two cases, were decided by the Tax Board on the same date on 14.9.2005. While the cases of M/s. R.C. Oil Industries and M/s Bajrang Bali Oil Industries (supra),were decided on 1.8.2013 but the present cases somehow kept pending before this court. 9. It may be appropriate to first deal with the arguments of the learned counsel for the assessee about jurisdiction. Admittedly, the case of M/s. R.C. Oil Industries and M/s Bajrang Bali Oil Industries (supra), were also of District Nagaur but came up to be decided by this court at Jaipur Bench, so also the instant cases are of District Nagaur and the petitions have been filed before this court at Jaipur in the year 2007, and it would not be appropriate to transfer such cases after almost nine years of pendency before this court. Be that as it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority. (emphasis supplied) 10. Thus, taking into consideration the aforesaid, this court in my opinion has the authority to hear and to dispose of the petitions particularly also because the earlier two petitions in M/s. R.C. Oil Industries and M/s Bajrang Bali Oil Industries (supra), though of same place, were heard and disposed of by the Jaipur Bench of this court. Furthermore, when the issue is covered and no more res integra by so many judgments of Apex court and this court, and transferring of the petitions now after nine years, does not arise. 11. The other objections raised by the learned counsel for assessee that in the three other cases on the self same question the Revenue did not assail the order of Tax Board before this court, is no reason to accept the contention of the learned counsel for the assessee for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ril 4, 1994, the date on which the ex parte order of stay was made by this Court, on the basis of the eligibility certificate so issued, the State Government would not disturb that position by seeking to recover any amount under that head. 13. The apex court, again in the case of State of Rajasthan v. Mahaveer Oil Industries (supra), after a detailed analysis of various judgments, has held as under :- In the premises, the judgment of the High Court, in so far as it sets aside the notification of 7.5.1990 issued under the Rajasthan Sales Tax Act, 1954 is set aside and the notification of 7.5.1990 issued under the Rajasthan Sales Tax Act, 1954 is upheld as valid. The respondents, however, will be entitled to retain the benefits received by them under the incentive scheme framed under the Rajasthan Sales Tax Act upto 4.4.1994. The judgment of the High Court in so far as it quashes the notification of 7.5.1990 issued in respect of the incentive scheme under the Central Sales Tax Act is upheld in the light of the decision of this Court in the case of State of Rajasthan v. Gopal Oil Mills. The appeal is disposed of accordingly. There will, however, be no order as to costs looki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon'ble Apex Court i.e. 20/04/1999. Therefore, by the aforesaid two judgments of the Hon'ble Apex Court, it was directed that the benefits flowing from issuance of certificate or/and incentive scheme was not correct and ultimately the notification of 07/05/1990 was upheld as valid. 11. xxx xxx xxx xxx 12. On perusal of the above, it is apparent that the explanation answers the present controversy which makes it very clear that any mistake apparent from the record by a judgment of the Supreme Court, Rajasthan High Court or the Rajasthan Tax Board, therefore, in my view, in the light of the judgment of the Hon'ble Apex Court, the rectification, insofar as the present facts and circumstances, are concerned, have been correctly made by the Assessing Officer. It is a matter of fact that when benefit has been extended by the Hon'ble Apex Court, considering the hardship faced by the similarly situated traders, upto the period when the operation of the judgment of this Court was stayed i.e. 04/04/1994 and when benefit has been denied to all such assessees, who were before the Hon'ble Apex Court, then by no stretch of imagination, such a benefit beyond 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of assessment under any section or in continuation of such assessment; and (b) on payment including adjustment of a demand in full. (3) The liability to pay interest under the provisions of this section shall also arise for a period which is less than an month. 18. On perusal of the above it envisages that the interest is leviable, if the dealer or a person commits default in making payment of any amount of tax leviable or payable, and admittedly the tax has not paid on or after 4.4.1994 by the assessees and, therefore, in my view the tax having not been paid the interest was certainly leviable and has rightly been levied by the AO. The judgments relied upon by the learned counsel for the respondents referred to above, are not applicable and distinguishable as all assessments are later than the cut off date, 4.4.1994, and at-least after 4.4.1994 the tax was leviable and once tax was leviable interest being automatic was rightly charged/levied by the AO. 19. Thus, in the light of the above and judgments of the apex court and this court in M/s. R.C. Oil Industries and M/s Bajrang Bali Oil Industries (supra), in my view, all the revision petitions are required to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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