Sarjoo Sahkari Chlni Mills Ltd. vs Commissioner of Commercial Tax, U.P.

Anil Kumar, J.—Heard Sri Pradeep Agrawal learned counsel for revisionist, Sri Sanjiv Sankhdhari, learned Additional Chief Standing Counsel and perused the record. As the controversy involved in the present case is trivial in nature so with the consent of learned counsels for the parties present today, the present revision is finally heard at the admission stage.

Facts in brief as submitted by learned counsel for the revisionist are that in respect of the assessment year 2004-05 (Central), the assessment order dated March 28, 2007 has been passed by the assessing authority.

Aggrieved by the said order, an appeal filed before the appellate authority, dismissed by order dated November 24, 2007.

Thereafter the revisionist filed a Second Appeal (Second Appeal No. 124/08 (2004-05 Central) Sarju Sahkari Chinni Mills Ltd. Bilraya, Kheri v. Commissioner, Trade Tax, Uttar Pradesh, Lucknow). During the pendency of same, the revisionist received the form C on April 5, 2008. So, in order to bring the said material document on record, an application has been moved by invoking provisions as provided u/s 12B of the U.P. Trade Tax Act 1948. By means of the order dated September 16, 2009 (annexure No. 5) the Tribunal dismissed the second appeal as well as the application moved by the revisionist u/s 12B of the Act.

Sri Pradeep Agrawal, learned counsel for the revisionist while challenging the impugned order submits that the action on the part of the Tribunal thereby dismissing the second appeal by means of the impugned order dated September 16, 2009 and refusing to entertain the application u/s 12B of the Act by which the revisionist sought to brought on record form C which he received on April 5, 2008 is an action which is contrary to the provisions as provided in the said section and in support of his argument he placed reliance on the judgment given by this court in the case of Commissioner of Trade Tax, U.P., Lucknow v. Dawakhana Tibbiya College, Aligarh [2005] 2 VLJ 172. Accordingly, it is requested by him that the present writ revision may be allowed.

Sri Sanjiv Sankhdhari, learned Additional Chief Standing Counsel, while defending the orders under challenge in the present case submits that the revisionist has not exercised due diligence by bringing the form C on record, as such there is no illegality or infirmity on the part of authorities concerned/Tribunal in passing the order dated September 16, 2009, dismissing the second appeal as well as application u/s 12B of the Act filed by the revisionist.

I have heard learned counsel for parties and perused the record.

In order to decide the controversy of the present case, it will appropriate to go through the relevant provisions as provided u/s 12B of the Trade Tax Act which is quoted as under:

There is no vested right of the assessee to adduce the additional evidence. It may be produced only when--

(i) the assessing authority wrongly refused to accept it;

(ii) it was not within the knowledge of the assessee or could not be produced before the assessing authority after exercise of due diligence.

Only if the above conditions are fulfilled, then the appellate authority may entertain it after giving proper opportunity of rebuttal and challenge to the Department.

Now reverting to the facts of the present case, it is not in dispute that for the first time, the form C has been received by the revisionist on April 5, 2008 when the second appeal is pending before the Tribunal, so prior to the said date, the revisionist was not in possession of the form C and after receiving he immediately moved an application in order to bring the same on record. So, the said exercise on his part is within the ambit and scope of "due diligence", thus he is entitled to get the benefit of the provisions of sub-section (ii) of section 12B of the Act. Hence, the impugned order dated September 16, 2009 passed by the Tribunal in second appeal thereby not giving benefit to the said section to the revisionist to bring on record the form C is an action contrary to law, liable to be set aside.

In the case of Dawakhana Tibbiya College, Aligarh [2005] 2 VLJ 172, this court held, the relevant portion of which is quoted as under:

I have perused the order of the Tribunal. It is not correct that the Tribunal has not allowed the application u/s 12B of the Act for the acceptance of form C filed for the first time, but it is true that the Tribunal allowed the benefit of concessional rate of tax without getting it verified from the assessing authority about its correctness and without giving opportunity to the assessing authority. In this view of the matter, assessing authority is directed to verify the correctness of the form C filed before the Tribunal for the first time. In case, if form C are found to be correct, benefit of concessional rate of tax will be allowed and in case, if they are not found correct, benefit of concessional rate may not be allowed and for which reasons may be recorded.

For the foregoing reasons, the order dated September 16, 2009 passed by Trade Tax Tribunal in Second Appeal No. 124 of 2008 (2004-05 Central) Sarju Sahkari Chinni Mills Ltd., Bilraya, Kheri v. Commissioner, Trade Tax, Uttar Pradesh, Lucknow is set aside and the matter is remanded to the said authority to decide expeditiously in accordance with law. With the above observations, revision is allowed.