TaxTMI 
TaxTMI 
2015 (12) TMI 469
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.... Whether the view expressed by the Division Benches of this Court in Dharma Rice Mill versus State of U.P. 2010 UPTC 648 and Kumar Rice Mills versus State of U.P. 2010 UPTC 1594 taking a contrary view lay down the correct law, having been expressed upon non-consideration of the judgments of the Supreme Court in the case of Hari Shanker versus Rao Girdhari Lal Chowdhury (supra) and Shiv Shakti Cooperative Housing Society versus Swaraj Developers (supra)." The facts in the context of which the revision arises fall in a narrow compass. During the period 1 April 2007 to 31 December 2007, comprised in assessment year 2007-08, the revisionist purchased wheat in the amount of Rs. 15,38,264/- for sale to a flour mill. The revisionist is engaged in the business of purchasing and selling food grains on retail and on commission. The flour mill for whom the revisionist had purchased the wheat opted for compounding its tax dues purportedly under a scheme floated by the State of Uttar Pradesh under Section 7-D of the Uttar Pradesh Trade Tax Act, 1948 UP Trade Tax Act. In the assessment proceedings, the purchases and sales made by the revisionist were treated to be exempt from tax. No tax was in....
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....hich was taken by the Division Benches of this Court in Dharma Rice Mill (supra) and Kumar Rice Mill (supra) failed to notice that the provision for a revision in Section 10-B of the UP Trade Tax Act was in the nature of an enabling provision and is not a substantive right. Reliance was sought to be placed on the ambit of the remedy of a revision as enunciated in the decisions of the Supreme Court in Hari Shankar Vs Rao Girdhari Lal Chowdhury AIR 1963 SC 698 and Shiv Shakti Co-op Housing Society Vs Swaraj Developers (2003) 6 SCC 659. The judgments of the Division Benches, it was submitted, having not examined the effect of the binding judgments of the Supreme Court, they did not constitute binding precedents. Consequently, it was urged that the provisions of Section 81 (2) of the UP VAT Act did not save the revisional remedy provided by Section 10-B of the Act. The learned Single Judge while adverting to this submission has formed the view that the decisions of the two Division Benches of this Court require reconsideration. On behalf of the revisionist, three submissions have been urged by learned Senior Counsel: (i) The revisional power under Section 10-B of the UP Trade Tax Act....
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....ord relating to any order (other than an order mentioned in section 10-A) passed by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order with respect thereof as he thinks fit. (2) No order under sub-section (1) affecting the interest of a party adversely shall be passed unless he has been given a reasonable opportunity of being heard. (3) No order under sub-section (1), shall be passed - (a) to revise an order, which is or has been the subject matter of an appeal under section 9, or an order passed by the Appellate Authority under that section: Explanation - Where the appeal against any order is withdrawn or is dismissed for non-payment of fee payable under section 32 or for non-compliance of sub- section (1) of section 9, the order shall not be deemed to have been the subject-matter of an appeal under section 9; (b) before the expiration of sixty days from the date of the order in question; (c) after the expiration of four years from the date of the order in question or after the expiration of two years from the date of commencement of section 19 of the U.P. Sales Tax (Amendment and ....
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....ureties. (6) The mention of particular matters in this section shall not be held to prejudice or affect general application of Section 6 of the Uttar Pradesh General Clauses Act, 1904, with regard to the effect of repeals." Section 56 of the UP VAT Act provides for the remedy of a revision to the Commissioner and is in the following terms: "Section 56. Revision by the Commissioner.-- (1) The Commissioner or such other officer not below the rank of Joint Commissioner, as may be authorised in this behalf by the Commissioner may call for and examine the record relating to any order, passed by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order with respect thereto as he thinks fit. (2) No order under sub-section (1) affecting the interest of a party adversely shall be passed unless he has been given a reasonable opportunity of being heard. (3) No order under sub-section (1), shall be passed- (a) to revise an order, which is or has been the subject matter of an appeal under section 55, or an order passed by the appellate authority under that section. (b) before the expiration of sixty....
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....rred. Sub-section (3) inter alia provides that an officer who has been authorized by the Commissioner under the repealed enactment to exercise powers under Section 10-B shall be deemed to have been authorized by the Commissioner to exercise such powers under Section 56. Sub-section (6) of Section 81 provides that the general application of Section 6 of the U P General Clauses Act 1904 with regard to the effect of repeals shall not be affected by the mentioning of particular matters in the section. Section 6 of the U P General Clauses Act, 1904 provides as follows: "6. Effect of repeal.--Where any Uttar Pradesh Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enac....
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.... recourse to any remedy which may have been available before the repeal for enforcement of such rights and liabilities." 13th edition 2012 p. 710 In Bansidhar Vs State of Rajasthan (1989) 2 SCC 557, a Constitution Bench of the Supreme Court considered the question as to whether proceedings for fixation of a ceiling area with reference to the appointed date under Chapter III-B of the Rajasthan Tenancy Act 1955 could be initiated and continued after the Rajasthan Imposition of Ceiling on Agricultural Holdings Act 1973 repealed Chapter III-B of the earlier Act. It was urged before the Supreme Court that even if the provisions of the earlier Act were held to have been saved, neither had a right accrued in favour of the state nor was any liability incurred by the landholders in the determination of the ceiling area so as to attract to their cases the provisions of the old law. Hon'ble Mr Justice M N Venkatachaliah (as the learned Chief Justice of India then was) explained the difference between what is and what is not a right preserved by Section 6 of the General Clauses Act in the following observations: "For purposes of these clauses the "right" must be "accrued" and not merely....
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.... Controller. The Supreme Court held as follows: "At the most, such a provision can be said to be granting a privilege to the landlord to seek intervention of the Controller for eviction of the tenant under the statute. Such a privilege is not a benefit vested in general but is a benefit granted and may be enforced by approaching the Controller in the manner prescribed under the statute. On filing the petition for eviction of the tenant the privilege accrued with the landlord is not affected by repeal of the Act in view of Section 6(c) and the pending proceeding is saved under Section 6(c) of the Act." At para 27 p 410 In other words, it was held that since the proceeding for eviction was pending when the repealing Act came into operation, Section 6 of the General Clauses Act would be applicable. The words "any right accrued" in Section 6 included the landlord's right to evict a tenant in case a proceeding was pending when the repeal came in. In State of Punjab Vs Bhajan Kaur (2008) 12 SCC 112, the Supreme Court held that the existing right of a party which is saved under Section 6 of the General Clauses Act has to be determined on the basis of the statute which was applicab....
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....t merely a procedure is prescribed. The Supreme Court held as follows: "Since the effect of a repeal is to obliterate the statute and to destroy its effective operation in future, or to suspend the operation of the common law, when it is a common law principle which is abrogated, any proceedings which have not culminated in a final judgment prior to the repeal are abated at the consummation of the repeal. When, however, the repeal does not contemplate either a substantive common law or statutory right, but merely the procedure prescribed to secure the enforcement of the right, the right itself is not annulled but remains in existence enforced by applying the new procedure." In Gammon India, the appellant after obtaining a construction contract in the State of Andhra Pradesh obtained the benefit of concessional tax available to registered dealers purchasing from other registered dealers in the State of Andhra Pradesh. Notices to show cause were issued to the appellant on 26 February 2005 and 12 April 2005 alleging that the appellant had falsely issued Form-G and claimed a reduced rate of tax from the sellers. The Andhra Pradesh Value Added Tax Act came into force on 1 April 2005 ....
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.... under Section 115 of the Code of Civil Procedure. Section 115, it was held, is essentially a source of power for the High Court to supervise the subordinate courts and does not confer a right on a litigant aggrieved by an order of a subordinate court to approach the High Court for relief. The scope for making a revision under Section 115 was held not to be linked with a substantive right. In that context, the Supreme Court observed as follows: "Right of appeal is statutory. Right of appeal inherits in no one. When conferred by statute it becomes a vested right. In this regard there is essential distinction between right of appeal and right of suit. Where there is inherent right in every person to file a suit and for its maintainability it requires no authority of law, appeal requires so. As was observed in State of Kerala v. K.M. Charia Abdulla and Co AIR 1965 SC 1585. The distinction between right of appeal and revision is based on differences implicit in the two expressions. An appeal is continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to statutory limitations prescribed. But in....
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....refund application and order of reassessment were challenged before a Division Bench. The Division Bench set aside both the orders and directed the Commissioner to pass appropriate orders on the refund application. The Commissioner passed an order by which he came to the conclusion that the original order of assessment was erroneous and prejudicial to the interest of the revenue and directed the Assistant Commissioner to revise the assessment order under Section 46. In the meanwhile, on 31 March 2005, the Delhi Sales Tax Act was repealed and on 1 April 2005 the Delhi VAT Act was brought into force. Section 106 of the Delhi VAT Act made a repeal and savings provision. The Delhi High Court noticed that no power of revision was conferred upon the Commissioner of Value Added Tax under the Delhi VAT Act. The revisional power which existed under the Delhi Sales Tax Act was not saved under the Delhi VAT Act and was brought in only subsequently with effect from 16 November 2005 by the introduction of Section 74A. The issue which fell for consideration before the Delhi High Court was whether after the Delhi Value Added Tax Act had come into force, the revenue could have issued a notice to s....
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....lows: "The power of revision is an enabling power available to a superior authority to correct an error committed by a subordinate authority. Shiv Shakti [2003] 6 SCC 659 is not limited in its application to Section 115 of the Code of Civil Procedure but follows the law earlier laid down, generally, on the revisionary power of an authority. The power of revision being only an enabling power and not a substantive right, it is not saved by Section 106(2) of the DVAT Act, which only saves a "right" or an "entitlement", both being synonymous. Consequently, whichever way one considers the problem, the assessment order dated March 31, 2003 could not have been re-opened by the Revenue in the manner that we are concerned with." At paras 77 and 78 p 355 The judgment of the Delhi High Court in the aforesaid case, as a close reading of the judgment would indicate, places a considerable degree of reliance on what was described as "the effect of the omission of a provision in a legislation enacted subsequent to the repeal of an earlier legislation." At para 79 p 355 The Delhi High Court emphasised that: "The intention of the legislature was clear on April 1, 2005 that it did not wish the....
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....pari materia with that which is contained in Section 10-B of the erstwhile Act save and except that now an authorisation for the exercise of the power by the Joint Commissioner is to be made by the Commissioner and not by the State Government as was the case under the previous legislation. Both the erstwhile legislation as well as the new legislation provide for a remedy of a revision to the Commissioner. The intent of the new Act was evidently not to abrogate that remedy of a revision. As we have observed above, the crucial issue in each case is the nature of the provision which has been made in the repealing legislation. In a case which fell for consideration before a Division Bench of the Punjab and Haryana High Court - Hindustan Construction Company Ltd Vs State of Haryana (2005) 141 Sales Tax Cases 119, the Haryana General Sales Tax Act 1973 had been repealed by the Haryana Value Added Tax Act, 2003. Section 61(2)(a) of the repealing Act saved any application, appeal, revision or other proceedings which were pending at the commencement of the repealing Act which could be then disposed of by the officer or authority who would have had the jurisdiction to entertain it under the....
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.... to various depots or branches in other States and in respect of sales allegedly in the course of inter-state trade after 26 January 1950. Both the claims were rejected by the Assessing Officer but were partially allowed by the first appellate authority. Revisions filed by the appellant against the rejection of its claim in respect of inter-state sales were pending when a notice was issued by the Deputy Commissioner intimating the appellant that he proposed to revise suo motu the appellate order of the Assistant Commissioner, Sales Tax insofar as he had allowed a deduction in respect of goods despatched to branches in other States outside Maharashtra. The appellant filed a writ petition challenging the notice. On behalf of the appellant, it was urged before the Supreme Court that the notice was issued when the earlier Act of 1953 had been repealed by a subsequent legislation of 1959 and the revisional jurisdiction could have only been exercised by the Deputy Commissioner on the basis of the new Act within a stipulated period of limitation. A repeal and savings provision was contained in Section 77(1)(a) of the repealing enactment of 1959. The Supreme Court held that notwithstanding....
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....hich is acquired, accrued or incurred. Under the provisions of the UP Trade Tax Act, Section 3(1) imposes upon every dealer for each assessment year the liability to pay tax at the rates provided by or under Sections 3-A, 3-D or Section 3-H on the turnover of sales or purchases or both, as the case may be. Under Section 7(1), every dealer, who is liable to pay tax under the Act, was required to submit returns of his turnover at such intervals, within such period, in such form and verified in such manner as may be prescribed. Under sub-section (2) of Section 7, the Assessing Authority is empowered to assess the tax on the basis of returns submitted if, after such enquiry as it considers necessary, it is satisfied that the returns submitted are correct and complete. If no return is submitted or if the authority believes it to be incorrect or incomplete, a best judgment assessment can be made under sub-section (3). Section 7-D provides for composition of tax liability. Section 9 provides for the remedy of an appeal to a dealer or other person aggrieved by an order made by the Assessing Authority. Section 10-B provides for a revision by the Commissioner. Section 10(2) provides for an a....
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....56, if any Collector acting under stipulated provisions has a doubt as to the amount of duty with which any instrument is chargeable, he can draw up a statement of the case and refer it with his own opinion for the decision of the Chief Controlling Revenue Authority. Under sub-section (4), which was introduced by a state amendment, the Chief Controlling Revenue Authority is, on its own motion or on the application of any party, empowered to call for and examine the record of any case disposed of by the Collector and to pass such order in reference thereto as it thinks fit for the purpose of satisfying itself as to the amount with which the instrument is chargeable with duty. The Supreme Court has held, while construing the provision, that: "...The intention of the legislature in inserting the said provision is clear and explicit as by reason thereof a power of revision has been conferred upon the highest authority of Revenue in the State, viz. Board of Revenue. .. The revisional power is to be exercised by the Board so as to enable it to satisfy itself in regard to the amount with which the instrument is chargeable with duty. The revisional proceeding has a direct nexus with dete....