Power of Revision under Trade Tax Act Saved in Value Added Tax Act post-repeal.

The court held that the power of revision under Section 10B of the U.P. Trade Tax Act, 1948 is saved under Section 81(2) of the U.P. Value Added Tax Act, 2008 after the repeal of the former Act. The court emphasized that the power of revision is essential for ensuring assessments are conducted lawfully. The Division Benches' views in previous cases were deemed correct, affirming that the power of revision remains intact under the new legislation. The matter was referred to the regular Bench for further proceedings based on the clarified legal position.

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Issues Involved:
1. Whether the power of revision under Section 10B of the U.P. Trade Tax Act, 1948 is saved under Section 81(2) of the U.P. Value Added Tax Act, 2008 after the repeal of the former Act.
2. Whether the Division Benches' views in Dharma Rice Mill and Kumar Rice Mills, which took a contrary view without considering the Supreme Court judgments in Hari Shanker and Shiv Shakti Cooperative Housing Society, lay down the correct law.

Detailed Analysis:

Issue 1: Whether the power of revision under Section 10B of the U.P. Trade Tax Act, 1948 is saved under Section 81(2) of the U.P. Value Added Tax Act, 2008 after the repeal of the former Act.

The court examined the nature of the power of revision under Section 10B, determining it to be an enabling provision rather than a substantive right. The court noted that the U.P. VAT Act repealed the U.P. Trade Tax Act but included a savings clause under Section 81, which preserved certain rights, privileges, obligations, and liabilities acquired under the repealed Act. The court emphasized that Section 81(6) explicitly preserved the general application of Section 6 of the U.P. General Clauses Act, 1904, which ensures that the repeal does not affect any right, privilege, obligation, or liability acquired under the repealed Act.

The court referred to several precedents, including Hari Shankar and Shiv Shakti Cooperative Housing Society, to highlight the distinction between an appeal (a substantive right) and a revision (an enabling provision). The court also cited the Supreme Court's decision in Swastik Oil Mills Ltd, which held that the power of revision is integrally connected with the assessment process and is thus preserved even after the repeal of the original Act.

The court concluded that the power of revision under Section 10B of the U.P. Trade Tax Act is indeed saved under Section 81(2) of the U.P. VAT Act, 2008, and can be exercised by the Commissioner even after the repeal of the former Act.

Issue 2: Whether the Division Benches' views in Dharma Rice Mill and Kumar Rice Mills, which took a contrary view without considering the Supreme Court judgments in Hari Shanker and Shiv Shakti Cooperative Housing Society, lay down the correct law.

The court examined the Division Benches' decisions in Dharma Rice Mill and Kumar Rice Mills, which had held that the power of revision under Section 10B survived the repeal of the U.P. Trade Tax Act. The court noted that these decisions did not consider the Supreme Court judgments in Hari Shankar and Shiv Shakti Cooperative Housing Society, which clarified that a revision is an enabling provision and not a substantive right.

The court analyzed the legislative intent behind the U.P. VAT Act and its savings clause, concluding that the legislature did not intend to abrogate the remedy of revision provided under the repealed Act. The court emphasized that the power of revision is essential for ensuring that assessments are carried out in accordance with the law and that this power is preserved under the new legislation.

The court held that the views expressed by the Division Benches in Dharma Rice Mill and Kumar Rice Mills were correct and that the power of revision under Section 10B of the U.P. Trade Tax Act is saved by Section 81 of the U.P. VAT Act, 2008, read with Section 6 of the U.P. General Clauses Act, 1904.

Conclusion:
The court answered both questions of law in favor of preserving the power of revision under Section 10B of the U.P. Trade Tax Act, 1948, even after its repeal by the U.P. VAT Act, 2008. The reference was disposed of, and the revision was placed before the regular Bench for disposal in light of the questions so answered.

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