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TMI Blog2022 (7) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... hereby allowed. The delay in filing the restoration application is condoned. Consequently, the application for restoration is also allowed. Revision No.76 of 2009 is restored to its original number. 4. Since common questions of facts and law are involved in both the revisions and have been filed by same revisionist, hence, both the revisions are being decided by this common judgment and order. 5. By means of the present revisions, the revisionist has assailed the judgment and order dated 27.1.2009 passed by Commercial Tax Tribunal dismissing Second Appeal No.s 364 of 2008 and 365 of 2008 holding that he is liable to pay tax on the sale of petroleum products to various State Oil Companies. 6. The revisionist is an oil company and in the year 2004 has merged with Indian Oil Corporation Limited and is owned and controlled by Ministry of Petroleum, Government of India. The present controversy relates to the assessment years 2000-01 and 2001-02 respectively arising out of Section 21 of U. P. Trade Tax Act. It has been submitted by learned counsel for the revisionist that entire purchases of Oil, Diesel and Motor Spirit has been made within State of U.P. from the registered dealer, na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point of sale. In support of his submissions learned counsel for the revisionist has relied upon Section 3A(1-c) of U.P. Trade Tax Act which reads as under:- "Section 3A Rates of tax: (1) Except as provided in Section 3D the tax payable by a dealer under this Act shall be levied (a)..... (b).... (c) On the other turnover in respect of goods other than those referred to in clause (a) or clause (b) at the point of sale by manufacturer or importer at the rate of ten percent." 10. It is further submitted that in exercise of power under Section 3A(1) (d), notification no.100 dated 15.1.2000 was issued prescribing rate of tax. Notification dated 15.1.2000 reads as follows:- "Provided that if the sale is by any of the undertaking registered as dealer in the name and style of M/s Indian Oil Corporation Limited, Bharat Petroleum Limited, Hindustan Petroleum Corporation Ltd. and Indo Burman Petroleum Company Limited. The tax shall be levied at the point of sale by such dealer to a person other than any of the aforesaid dealer." 11. Relying upon the proviso of the said notification it has been submitted by learned counsel for the revisionist that if the sale is by any of the un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apart from challenging the validity and competence of the State Government to issue any Government Order and direction for realizing the tax at the rate of 25% and 21% respectively, on the ground that in view of Section 3A (1-c) of the U.P. Trade Tax Act, Notification No.3433 dated 25.11.2004 is invalid as the aforesaid provisions give power for review of tax liability only at the rate of 10%. Besides this, it has also been pleaded that in terms of Section 3(1) (a) (b) of United Provinces Sales of Motor Spirit, Diesel Oil and Alcohol Taxation Act, 1939 the expression "first sale" having been defined under the said provisions, no other meaning could be given to the said expression, by virtue of the provisions of U.P. Trade Tax Act, which, therefore, also, later on, was amended. The aforesaid expression 'first sale' says that 'in case of dealers registered as M/s Indian Oil Corporation Ltd., M/s Bharat Petroleum Corporation Ltd., M/s Hindustan Petroleum Corporation Ltd. And M/s Indi Burma Petroleum Company Ltd., the sale at the stage when such dealers make sale of motor spirit or diesel oil to a dealer other than the said dealers for the first time in the State of Uttar Pradesh: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount shall be recovered from the petitioners oil companies for the period before 1st August, 2007, as the amount of tax for the aforesaid period already stands deposited on their subsequent sale by the other oil companies and that of -course after 1st September, 2007 the petitioners are depositing the tax as demanded by the State Government. It is only for the month of August, 2007 when the tax has been deposited twice, namely, once by the petitioners and again from the other oil companies to whom the sale was made by the petitioners' company. Since it being not in dispute that the State Government could not have realized the tax twice for the sane goods, and being admitted to the Additional Government Advocate, who has fairly and candidly conceded and rather stated that the amount which has been so collected by the State Government for the month of August, 2007 can be adjusted from future payment to be made by the petitioners,..... 14. In light of the above, the controversy has been answered by this Court in the aforesaid case of M/s Indian Oil Corporation Limited Vs. State of U.P. and another and the Court had noticed that for the period in question the amount of tax was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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