Tent House Association vs State Of U.P.

Dr. Satish Chandra, J.—By this revision, the revisionist has assailed the impugned order dated June 13, 2001, passed by the Trade Tax Tribunal, Lucknow in Appeal No. 70 of 2000, u/s 35 of the Trade Tax Act. The brief facts of the case are that the revisionist is an association of the tent house owners. Whether the tent services come under the purview of U.P. Trade Tax Act or not. For this purpose, an application was moved before the Commissioner u/s 35 of the U.P. Trade Tax Act, 1948. The said application was rejected by the Commissioner by observing that the revisionist is not a dealer. Being aggrieved, the revisionist has filed a Writ Petition No. 1081 (MB) of 2000, where the honourable court vide its order dated March 8, 2000 has directed that the Commissioner, Trade Tax will consider the representation of the petitioner''s association pending before him expeditiously. In pursuance to the direction, the Commissioner has decided the application against the revisionist.

Being aggrieved, the revisionist has filed an appeal before the Tribunal, who vide its impugned order dated June 13, 2001 has dismissed the appeal by observing that the revisionist has no locus. Not being satisfied, the revisionist has filed a Writ Petition No. 4488 (MB) of 2001, where on February 11, 2002, the honourable court has directed to file a revision against the impugned order.

As per the direction, the revisionist has filed the present revision.

With this background, Sri N.C. Mishra, learned counsel for the revisionist, submits that the revisionist is an association of the tent owners and it was created for the protection of the interest of its members and also to look the common business interest of its members, but the Tribunal vide its impugned order wrongly observed that there was no locus. But, it has the locus.

On the other hand Sri Sanjeev Shankhdhar, learned standing counsel justified the impugned order passed by the Tribunal.

After hearing both the parties and on perusal of the record, it appears that section 35 of the U.P. Trade Tax Act speaks about the opinion pertaining to the trade tax which can be obtained from the Commissioner. Section 35 of the Act is reproduced as under:

Determination of disputed questions.--(1) If any question arises, otherwise than in a proceeding pending before a court or before an assessing authority u/s 7 or section 21, whether, for the purposes of this Act,--

(a) any person or association of persons, society, club, firm, company, corporation, undertaking or Government Department is a dealer; or

(b) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term; or

(c) any transaction is a sale or purchase and, if so, the sale or purchase price, as the case may be, therefor; or

(d) any particular dealer is required to obtain registration; or

(e) any tax is payable in respect of any particular sale or purchase and, if so, the rate thereof,

the person or the dealer concerned may, after depositing the fee specified in section 32, submit an application to the Commissioner along with such documents as may be prescribed.

In the instant case, the revisionist has asked whether the tent service is subject to trade tax or not. The said opinion will be binding on its members.

In the instant case, an application for seeking the clarification was moved as per the direction of the honourable High Court, which was not challenged by the Department. So, the direction dated March 8, 2000 of the honourable court attains the finality and is binding on the Department. Moving of the application u/s 35 of the Act, is an off-suit of the said direction and that is binding upon the lower authorities, even it was wrong. It was the pious duty of the authority concerned to obey the same or assail the same before the honourable apex court, but neither the order was challenged nor it was complied with.

Regarding section 35 of the Act, the honourable Allahabad High Court observed in the case of Jagan Lal and Shiv Charan Dass v. Commissioner of Sales Tax [1981] UPTC 840 that only the question that has arisen can be adjudicated upon u/s 35. The Commissioner can assume jurisdiction only on an application filed by a dealer or a person in respect of the items enumerated in clauses (a) to (e) of sub-section (1) of section 35, and such question must arise otherwise man in a proceeding before a court or before an assessing authority u/s 7 or section 21. Declaration from the Commissioner of Sales Tax can be obtained on an existing fact, in present, and not on an assumed fact, in future.

In the light of above discussion and by considering the totality of the facts and circumstances of the case, the impugned order passed by the Tribunal dated June 13, 2001 is hereby set aside. The Tribunal is directed to decide the issue de novo on merit, after providing an opportunity of hearing to the revisionist, as per the spirit of the direction dated March 8, 2000, issued by the honourable High Court. With the above observation, the revision is disposed of.