TMI Blog2019 (8) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... er(14) 2005, dated 07.03.2005. It is always open for the respondent to recover the shortfall of Tax levied on the goods supplied from the purchaser in accordance with law. Revision allowed. - Trade Tax Revision No. - 196 of 2012, 191 of 2012 - - - Dated:- 14-8-2019 - Alok Mathur, J. For the Applicant : C.S.C. ORDER ALOK MATHUR, J. 1. Heard Sri Rohit Nandan Shukla, learned Standing Counsel appearing on behalf of revisionist as well as Sri Manish Singh, learned counsel for the opposite party. 2. Since both the revisions have been preferred by the Revenue against the common impugned judgment and order dated 11.08.2011, and Revision No. 196 of 2012 is related to assessment year 2006-07 while Revision No. 191 of 2012 relates to assessment year 2005-06, they are decided by the common judgment. 3. The Revenue has preferred these revisions under Section 11(1) of the U.P. Trade Tax Act, against the judgment and order dated 11.08.2011, passed by the Commercial Tax Tribunal, Bench-II, Lucknow in Second Appeal No. 123 of 2011 - M/s Shashi Cables Ltd. Lucknow Vs. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional demand was raised. 9. Being aggrieved by the order dated 5.11.2009 passed by the assessing authority under Section 22 imposing the Tax on the sale turn over of ACR Conductor for the assessment year 2006 07 after having found that there was error apparent on the face of record relating to assessment of Tax, the respondent/firm filed a First Appeal before the Additional Commissioner Grade-II (Appeal), Judicial Zone, Commercial Tax, Lucknow . Similarly an appeal was also filed by the respondent for the assessment year 2005 06. 10. The first Appellate Authority after hearing both the parties, decided the appeals of the respondent vide judgment and order dated 25th November 2010 whereby the appeals as filed by the respondents challenging the orders passed under Section 22 were rejected being devoid of merits. However, the first appellate authority observed that the respondent/firm ought to have obtained Form-XIX from the purchasing dealer, sugar/spinning mill as per law, but this was laxity on the part of the respondent. Finally, the appeals of the respondent were dismissed by the First Appellate Authority by the aforesaid judgment and order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent on the face of record, which could be ascertained without any deep discussion and same did not amount to any change of opinion. 16. Learned counsel for the respondent on the other hand has submitted that judgment of the Commercial Tax Tribunal does not suffer from any infirmity and has rightly been concluded that the order passed by the assessing authority under Section 22 of the Act was beyond its jurisdiction. 17. After hearing learned counsel for the parties following questions of law emerges for the consideration of this court :- (1) Whether the Assessing Authority correctly exercised his jurisdiction under section 22 of the Trade Tax Act, imposing Tax at the rate of 4% on the sale of goods in view of the notification dated 7 March 2005 ? (2) Whether Trade Tax Tribunal was legally justified in setting aside-the order dated 05.11.2009 passed by assessing authority? 18. The undisputed facts which emerge are that respondent had sold ACR conductors against Form 3 B which was supplied by the sugar and spinning mills to the respondent wherein rate of Tax of 2.5% was endorsed. The respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, of any notified goods, or in the packing of such notified goods manufactured or processed by him, and such notified goods are intended to be sold by him in the State or in the course of inter-State Trade or commerce or in the course of export out of India, he may apply to the assessing authority in such form and manner and within such period as may be prescribed, for the grant of a recognition certificate in respect thereof, and if the applicant satisfies such requirements including requirement of depositing late fee, and conditions as may be prescribed, the assessing authority shall grant to him in respect of such goods recognition certificate in such form and subject to such conditions, as may be prescribed. 23. Learned counsel for the respondent submitted that the Sales Tax Officer after recording his satisfaction and making inquiries furnished the form as prescribed under sub-section 3 of Section 4B of the Trade Tax Act. It is not in dispute that the selling dealer had made sale to the purchaser who has produced genuine record mentioning articles in it. Liability of the selling dealer, who accepts form 3-B is only to check them to ens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Tax on the basis of notification dated 7th March, 2005 which was observed by the assessing authority subsequently. This aspect of the matter has already been considered by this Court in the case of Star Paper Mills Ltd. Vs. Commissioner of Sales Tax, (2005) 139 STC 245 All . 28. The Tribunal in the impugned order has considered the fact that it was the duty of the Purchaser to provide Form 3 Kha to the petitioner, wherein the rate of Tax to be charged was endorsed. The Purchaser (Assessee/Revisionist) on the basis of the said Form had charged Tax at the rate of 2.5% and duly deposited the same with a Revenue. The Assessing Authority while passing the assessment order had also assessed the rate of Tax to be 2.5%, but subsequently in exercise of power under Section 22 of the Trade Tax Act on discovering the mistake he has reassessed the Tax leviable on the said items at the rate of 4% and sought to recover the differences from the revisionist. 29. Exercise of power under Section 22 is confined to rectification of mistakes which are apparent on the record, during the period of three years from the date the order sought to be rectified. In order t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for any wrong committed by the purchasing dealer. This argument has also found favour with the Tribunal, which has proceeded to allow the appeal preferred by the revisionist. 32. On one hand on the ground of equity the revisionist has relied on a series of judgments to canvas his contention that there being no fault on the part of the revisionist, he could not be again saddled with the liability of enhanced rate of Tax while on the other hand the admitted position is that the said transaction was taxable at higher rate of Tax i.e. 4%. 33. To resolve the controversy at hand it is relevant to notice that in matters of taxation equity has no role to play and admittedly as per the notification No. KA NI 2 731/XI-9(37) U.P. Act 15-48 order(14) 2005 dated 07.03.2005 the said transaction was to be taxed at the rate of 4% and also there being an error apparent on the face of record, therefore, the Assessing Authority was within its jurisdiction to pass the order under Section 22 of the Trade Tax Act. 34. In the case of Commissioner of Income Tax, Madras Vs. MR. P. Firm AIR 1965 SC 1216 in paragraph No. 13 the Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. The principle of strict interpretation of taxing statutes was best enunciated by Rowlatt, J, in his classic statement in Cape Brandy Syndicate v. IRC (1921) A kb64; In a Taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. 19. It is said that tax and equity are strangers vide Patrington v. Attorney General (1869) LR 4 HL 100. This view was best expressed by Lord Cairns as follows:- If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind. On the other hand if the Court seeking to recover the tax cannot being the subject within the letter of the law, the subject is free, however apparently with the spirit of the law the case might otherwise appear to be. 39. The series of judgments as cited hereinabove clearly lay down the law in this regard that the equity has no rol ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
