M/S Vindhya Aashram vs The Commissioner, Commercial Tax

Ashwani Kumar Mishra, J.—While entertaining the present revision, following orders were passed in the matter on 30th May, 2011:-

"This revision relates to the assessment years 2006-07.

The only dispute is about the rate of Gitti per permit. The assessing authority as well as the Tribunal has applied the rate of Rs.1235 per permit.

The submission of Sri Alok Kumar, learned counsel for the revisionists is that the aforesaid rate is said to have been determined on the basis of an affidavit wherein the revisionists have admitted the said rate but in fact no such admission was made. He has brought on record the affidavit in question by means of supplementary affidavit. This affidavit does not disclose that the revisionists had ever admitted the rate of Gitti to be Rs.1235 per square permit.

Further submission is that in the assessment years 2007-08 the Tribunal itself has accepted the rate of Gitti to be Rs.1,000/- per permit.

A perusal of the impugned orders reveal that there was no specific material before the authorities for determining the rate of Gitti to be Rs.1235/- per permit.

In view of above, the only aspect which arises for consideration in the present revision is:-

Whether in the absence of any specific material to establish the rate of Gitti to Rs.1235/- per permit, the authorities were justified in determining the above rate when there was no such admission on part of the revisionists and in the subsequent year the rate was held to be Rs.1,000/- per permit.

Since learned Standing Counsel has accepted notice on behalf of opposite party, no notice need not be issued.

List for final disposal on its own turn.

Until further orders of this court the disputed amount of tax for the assessment years 2006-07 shall not be realized from the revisionists provided they deposit 50% of the disputed amount and furnishes security other than cash and bank guarantee to the satisfaction of the assessing authority in respect of the balance 50% of the amount within a period of 30 days from today.

Any amount already deposited, shall be given adjustment.

In the event of default, the stay order shall automatically come to an end."

Learned counsel for the revisionist submits that the only basis for authorities to arrive at a conclusion that rate payable by the revisionist was Rs.1,235/- per permit, was his alleged nonexistent affidavit.

Before this Court, it is disputed by the revisionist that any such affidavit was actually filed by him. It is also stated that in respect of assessment proceedings for subsequent years, the Tribunal itself has determined the rate at Rs.1,000/- per permit. It is contended that the basis for determining the liability by the authorities is wholly erroneous and non-existent, and therefore, cannot be sustained.

Learned Standing Counsel has not been able to demonstrate that any affidavit was actually submitted by the revisionist before the authorities admitting his liability to pay the amount at the rate of Rs.1,235/- per permit. The alleged affidavit filed along with supplementary affidavit does not contain any such admission.

Having considered the respective submission advanced by learned counsel for the parties, this Court finds that the order passed by the Tribunal cannot be sustained, for the reason that no such affidavit had been filed by the revisionist admitting his liability to pay at the rate of Rs.1,235/- per permit. The order of the authorities proceeds on the basis of non-existent admission of the revisionist, and therefore, such orders cannot be sustained. This Court further finds substance in the argument advanced by learned counsel for the revisionist that in respect of subsequent period, the rate has been determined by the Tribunal itself at the rate of Rs.1,000/- per permit, and in absence of alleged admission on its part, the determination of liability would be wholly unsustainable. In such circumstances, the order passed by Tribunal dated 27th January, 2011 cannot be sustained, and is set aside.

The revision, consequently, succeeds and is allowed. The matter is remitted back to the Tribunal for a fresh consideration of the cause, keeping in view the observations made above, and in accordance with law. The Tribunal shall decide the matter afresh, within a period of four months from the date of presentation of certified copy of this order.