Kisan Sahkari Chini Mills Ltd. vs Commissioner of Commercial Tax

Dr. Devendra Kumar Arora, J.—Heard Sri Pradeep Agrawal, learned counsel for the revisionist and learned standing counsel on behalf of the respondent. With the consent of the parties'' counsel, the matter in question is disposed of finally at admission stage.

Facts in brief as submitted by the learned counsel for the revisionist are that the applicant/revisionist, i.e., M/s. Kisan Sahkari Chini Mills Ltd., Sampurna Nagar, Kheri, is served an initial assessment order passed by the assessing authority. Aggrieved by the same the revisionist filed an appeal before the appellate authority and vide order dated November 25, 2013 the first appellate authority has passed an interim order in favour of the appellant/applicant thereby staying the recovery of the disputed amount of tax for assessment year in question with the condition that the applicant shall deposit only 35 per cent of the same. Aggrieved by the order dated November 25, 2013, the applicant filed second appeal u/s 11 of the U.P. Trade Tax Act, 1948. The Tribunal by order dated January 25, 2014 partly allowed the appeal with the direction that the applicant shall deposit only 20 per cent of the amount of tax in the assessment year. Aggrieved by the same, present revision u/s 11 of the U.P. Trade Tax Act, 1948 has been filed before this court thereby challenging the order dated January 25, 2014 passed by the Commercial Tax Tribunal, Bench-I, Luck-now in Appeal No. 565 of 2013.

Sri Pradeep Agrawal, learned counsel for the revisionist, while assailing the impugned order submits that the applicant is a Government Corporation, as such there is no justification and reasons on the part of the Trade Tax Tribunal thereby not staying the entire recovery towards the deposited amount of tax.

He further submits that the impugned action on the part of the Tribunal is in contravention to the law as laid down by this court in the case of Indian Oil Corporation Ltd., Agra v. Trade Tax Tribunal, Agra [1999] UPTC 1030 and in the case of Moriroku UT India Pvt. Ltd., Noida v. Union of India [2006] UPTC 274.

In view of the abovesaid fact, a request has been made by Sri Pradeep Agrawal, learned counsel for the revisionist that the impugned order in question is arbitrary in nature and liable to be set aside.

Sri Sanjeev Shankhdhar, learned counsel for the respondent, does not dispute to the abovesaid legal position.

I have heard the counsel for the parties and gone through the record of the case.

Needless to mention herein that vide judgment and order dated November 4, 2009 in Writ petition No. 5949 (MS) of 2009 (Food Corporation of India, Lucknow v. Commissioner of Commercial Tax, Lko.) in respect to identical controversy this court has decided the matter and the operative portion of the same is quoted hereinbelow:

"Mr. Pradeep Agrawal, learned counsel for the petitioner submits that the amount is saved in the account of the petitioner and the payment of the same shall depend upon the outcome of the appeal. Therefore, the petitioner may not be compelled to pay any part of the amount, as has been made recoverable at this stage. In support of the submission, he cited a decision of the case, i.e., Indian Oil Ltd. v. Trade Tax Tribunal [1999] UPTC 1030. Considering the facts and circumstances of the case, I hereby stay the operation of the recovery proceeding initiated through the demand notice dated July 28, 2009 issued by the opposite party No. 3 till further order of this court. Mr. Pradeep Agrawal, learned counsel for the petitioner submits that pursuant to the recovery citation the petitioner''s account has been attached, which permitted for operation by the petitioner, till further order of this court. Since I have stayed the recovery proceeding, I hereby provide that the petitioner shall be permitted to operate the account. Since the appeal is still pending considering for adjudication before the appellate authority, no further action is required by this court in the matter."

For the foregoing reasons, after hearing the learned counsel for the parties and on the basis of material on record, the recovery proceedings initiated against the revisionist for recovery of the disputed amount of tax for assessment year in question shall remain stayed for a period of four months or till the decision taken by the first appellate authority in the first appeal filed by the applicant u/s 9 of the U.P. Trade Tax Act, 1948, whichever is earlier. With the above observation, the revision is disposed of finally.