TMI Blog2017 (10) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 67 of 1994 which has finally been decided vide judgment and order dated 13.7.2017. The efficacious and appropriate remedy is not the writ petition but the order of the Trade Tax Revision could have been assailed before the Hon'ble Apex Court, if the petitioner so advised. The petitioner may, therefore, approach the Hon'ble Apex Court, if so advised but it cannot re-agitate the same issue before the writ court by filing writ petition under Article 226 of the Constitution of India. Petition dismissed. - MISC. BENCH No. 23745 of 2017 - - - Dated:- 23-10-2017 - Hon'ble Devendra Kumar Upadhyaya And Hon'ble Rajesh Singh Chauhan, JJ. For the Petitioner : Pradeep Agrawal For the Respondent : C.S.C. ORDER ( Delivered by Hon. Rajesh Singh Chauhan, J. ) Heard Sri Pradeep Agarwal learned counsel for the petitioner and Sri Rahul Shukla learned Additional Chief Standing Counsel for the State. By means of instant writ petition the petitioner has assailed the order dated 11.9.2017 issued by the Deputy Commissioner, Trade Tax, Sector 8, Meera Bai Marg, Lucknow demanding ₹ 2,09,98.112 with interest as tax liabilities which is contained as Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability of purchase tax upon the applicant in respect of purchase of wheat worth ₹ 54,87,61,701.52, which were supplied to Food Corporation of India by the applicant and on which the Food Corporation of India has admittedly paid the purchase tax being the first purchaser of the said wheat and no liability could legally be fastened upon the applicant merely because form III-C-1 was not filed by the applicant because Food Corporation of India did not supply form III-C-1 to the applicant, F.C.I. having discharged their liability by paying the purchase tax on the aforesaid purchases worth ₹ 54,87,61,701.52, in view of Section 3-D (1) (Explanation II)? 3. It is admitted that Form III-C-1 was not submitted by revisionist and therefore liability of tax has been levied upon Assessee. Section 3-D sub Section 7 of U.P. Sales Tax Act, 1948 (hereinafter referred to as Act 1948 ) provides as under:- 3-D. Levy of purchase or sales tax on certain goods. (1)............... (7)(a) Every purchase within Uttar Pradesh by dealer either directly, or through another, whether on his own account or on account of any one else, shall for the purposes of sub-section (1), b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken to be first purchase. There is no dispute about the fact that after the levy food grains are purchased by the State through its agencies, the same are then purchased by the Food Corporation of India, which is also registered as a dealer under the U.P. Sales Tax Act. The liability is thus fastened upon the petitioner by virtue of Explanation II to Section 3-D(1) of the U.P. Sales Tax Act quoted above.' The counsel for the petitioner further submitted that feeling aggrieved by the aforesaid order of the High Court, a Special Leave Petition was filed before the Hon'ble Apex Court. The Hon'ble Apex Court vide order dated 28.2.1997 affirmed the order of High Court (supra). The petitioner has reproduced para 7 of the judgment of Hon'ble Apex Court in para 26 of the writ petition as under : ''Although the purchase made by the Food Corporation of India from the State is a second sale or purchase, in view of explanation II to section 3D(1) of the U.P. Sales Tax Act, it is deemed to be the first purchase. Explanation II was added with retrospective effect by U.P. Act No. 23 of 1976. It is specifically in respect of purchase of feed grains in pursuance of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in its Government Order dated 21.7.1977. The counsel for the petitioner has quoted Rule 12-B in para 29 of the writ petition which provides exemption from purchase or trade tax under section 3D, which runs as under : (1). the certificate of declaration referred to in subsection (7) of section 3D shall be in forms III-C(1) III-C(2). .................. Subsection (7)- In respect of the goods notified under the clauses (a) (b) of subsection (1) of section 3D, the certificate or declaration in- (a) Form III-C(1) shall be issued by the dealer, who accepts the liability to tax on the purchase or sale of goods, as the case may be, to the following:- (i) to the seller when such dealer is the first purchaser: or (ii) to the subsequent purchaser ; or (iii) to his selling agent ; or (iv) to his Principal in Uttar Pradesh in case the sale is made by such dealer as selling commission agent to an unregistered dealer ; or (v) to his Principal in Uttar Pradesh when acting as purchasing commission agent.' As per the submission of the learned counsel for the petitioner, the aforesaid provision has duly been complied with by the Food Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue raised herein before the Sales Tax Tribunal under section 10 of the U.P. Sales Tax, 1948. Admittedly, feeling aggrieved by order of Sales Tax Tribunal, the Revision under section 11 of the U.P. Sales Tax Act, 1948 was filed before this Court bearing Trade Tax Revision No. 67 of 1994 which has finally been decided vide judgment and order dated 13.7.2017 (supra). The efficacious and appropriate remedy is not the writ petition but the order of the Trade Tax Revision could have been assailed before the Hon'ble Apex Court, if the petitioner so advised. The Hon'ble Apex Court in re: Union of India and others vs. Major General Shri Kant Sharma and another (2015) 6 SCC 773, vide para 27 and 28 of the judgment has observed as under: 27. In Babubhai Muljibhai Patel v. Nandlal Khodidas Barot this Court held as follows: (SCC pp.715-16, para 10) 10.....rcise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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