TaxTMI 
TaxTMI 
2016 (8) TMI 1077
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....e case putforth by the petitioner was that prawn would be included within the meaning of live stock since the aquatic farmers are engaged in systematic breeding of prawn for human consumption. The Deputy Sales Tax Commissioner passed an order dated 18.01.2001 and upheld the petitioner's contention. He concluded that the prawn feed, a commodity in which, the petitioner was dealing, would be included under Entry 14 of First Schedule to the Sales Tax Act and consequentially, would be exempt from payment of tax. This order was never challenged by the Sales Tax authorities and thus achieved finality. The assessments which followed this order, granted the benefit of exemption to the petitioner in respect of such commodity. Thus, year after year, the petitioner claimed and was granted exemption from payment of sales tax on its sale of prawn feed. 3. With effect from 01.04.2006, the Sales Tax Act was substituted by the Gujarat Value Added Tax Act, 2003 ('the VAT Act' for short). This Act also contained an exemption Entry11 in the First Schedule referring to cattle feed. We may record that this exemption entry was worded identically as Entry14 of ScheduleI to the Sales Tax Act.....
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....with retrospective effect. IV. Even otherwise consideration by the Assessing Officer, is wholly erroneous. Merely because aquatic feed has been included in the exemption notification with effect from 31.03.2012 would not mean that prior to such date, the same was taxable under the residuary clause. In other words, the exemption notification cannot govern the classification of a product for its taxability. If a product otherwise does not fall within any of the taxable entries, merely because an exemption has been granted, would not mean; prior to the exemption it was taxable. 7. In support of his contentions, counsel has placed reliance on certain decisions, to which, we would refer to at a later stage. 8. Learned AGP, on the other hand, opposed the petition contending that against the order of assessment, a statutory appeal is available. This writ petition therefore, should not be entertained. The Assessing Officer has given cogent reasons. With effect from 31.03.2012, the entire issue has undergone a material change. The order of determination which was passed by the Deputy Commissioner under the Sales Tax Act, therefore would no longer govern the taxability of the product und....
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....rst Schedule in the VAT Act even after the Sales Tax Act was substituted. 13. Section 80 of the VAT Act pertains to determination of disputed questions and reads as under: 80. Determination of disputed questions. (1) If any question arises, otherwise than in proceeding before a court, or proceedings under section 33, 34 or 35, whether for the purposes of this Act- (a) any person, society, club or association or any firm or any branch or department of any firm 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, or (d) any particular dealer is required to be registered, or (e) any tax is payable in respect of any particular sale or purchase or if tax is payable the rate thereof, or (e) any tax credit is admissible under section 11 or section 12, [the Commissioner, Special Commissioner, Additional Commissioner or Joint Commissioner] shall make an order determining such question. (2) [The Commissioner, Special Commissioner, Additional Commissioner or Joint Commissioner] may direct that the determination shall not affect th....
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....ith respect to any sale or purchase affected prior to such order. Thus, subsection (2A) of section 80 while clothing the Commissioner with the revisional powers of an order of determination, it limits the effect of any such order prospectively. Under subsection (3) of section 80, it is provided that any question which arises from any order already passed under this Act or under the earlier law, no such question shall be entertained for determination under this section, but such a question can be raised in appeal or by way of revision. 16. Under subsection (3) of section 80 therefore, the order of determination passed by the Deputy Commissioner under section 62 of the Sales Tax Act would continue to hold the field. When subsection (3) of section 80 refers to any question from any order already passed under the Act or under the earlier law, it necessarily includes a reference to an order of determination passed by the competent authority under the erstwhile provisions of section 62 of the Sales Tax Act. In other words, under identical situation, under subsection (1) of section 80 of the VAT Act, the authorities cannot reopen a question which is already decided by the competent autho....
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....Act, the final authority to determine the dispute is conferred upon the Commissioner or any of his authorised representatives. Such an order would be binding between the parties and if any of the parties are aggrieved by the order, then it has to challenge the said order before the Appellate forum. Undisputedly, the above referred two orders still stare in the eyes of the Department. It is to be noted that the said orders have yet not been challenged by the Department before any Appellate forum. Under the circumstances, the orders would not only bind the applicant who made the Reference but would also bind the State Sales Tax Department which was a party before the Commissioner of Sales Tax. Under the circumstances, we must hold that the Tribunal was justified in holding that "toolbits" would be taxable under Entry 3(ix) of Schedule IIA of the Act." 22. Likewise, in judgment dated 30.06.2005, passed in Sales Tax Reference No.6 of 1994 in case of State of Gujarat v. Electro Porcelain Industries, the Court held and observed as under: "9. Section 62(1) of the Act clearly provides that if any question arises, otherwise than in proceedings before a Court, or proceedings under sectio....
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....h Tribunal had taken different view of the matter." 23. Thus, the Assessing Officer was bound by the order of determination passed by the Deputy Commissioner and could not have taken a different view unless of course, there had been any material change. In this context, the second element of the question arises viz. did introduction of the exemption entry with effect from 31.03.2012 make any material difference. We have noticed that with effect from 31.03.2012, the State Government exempted aquatic feed from all taxes. This by itself would not mean that the legislation indicated that prior to 31.03.2012 the product was taxable. This exemption notification is not in the nature of clarificatory amendment either clarifying or making any amendment with retrospective effect concerning the product in question. Had the legislature made any specific change either prospectively or with retrospective effect which would change the very fundamental question of taxability of the product, Assessing Officer would have been well within the power to consider such question independently ignoring the order of determination passed by the Deputy Commissioner. In the present case however, all that the....