TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 880
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....uestions of law:- "(i) Whether the Trade Tax Tribunal is legally justified in law in ignoring the Eligibility Certificate issued to Revisionist by competent Authority dated 5.2.1998, which provide rate of tax payable in each Assessment years during the period of exemption? (ii) Whether the Trade Tax Tribunal is legally justified in law in confirming the orders passed by Authorities below rejecting the books of account of revisionist without any incriminating material available to him?" 2. Heard Sri Praveen Kumar, learned counsel for the applicant-assessee and Sri B.K. Pandey, learned counsel for the revenue. 3. During A.Y. 1999-2000, the assessee manufactured black & white and colour television sets. It set up a "new unit" within the meaning of that term under Section 4-A of the Act, at Ghaziabad. It applied to the Divisional Level Committee to grant exemption in terms of twin exemption notifications nos. 780 and 781 (both issued by the State Government on 31.3.1995) under Section 4-A of the Act, and section 8(5) of the Central Sales Tax Act 1956, respectively. Also admittedly, on 05.02.1998, the Divisional Level Committee, Noida granted the Eligibility Certificate to the as....
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.... 25% of its tax liability. Another difference that would arise on such reasoning would be, though according to the Divisional Level Committee, the assessee was entitled to exemption up to the monetary limit computed at 175% of the fixed capital investment expended by it to set up the "new unit", yet, according to the first appeal authority, under Part-II of the exemption notification, it would be entitled to exemption from tax without reference to any monetary limit. 5. Thus, the entitlement to exemption was completely altered by the first appellate authority. The assessee being aggrieved, carried the matter in appeal to the Tribunal, that has been dismissed by the impugned order on the reasoning - the entitlement to exemption flows from the exemption notification and not from the Eligibility Certificate. Since, Part-II to the exemption notifications had been added by the amendment made thereto with effect from 16.11.1995, notwithstanding a contrary recital of rights contained in the Eligibility Certificate, the assessee being a manufacturer of electronic goods would remain entitled to exemption under Part-II of Annexure 1 to the exemption notifications. In that regard, the Tribun....
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....granted with effect from A.Y. 1996- 1997 (from 14.06.1996), hence A.Y. 1999-2000 would always remain the third/fourth year of exemption. 8. In such circumstances, the First Appellate Authority is claimed to have acted wholly outside its jurisdiction in culling out a completely new, non-existent, objection. The jurisdiction of the first appellate authority being co-extensive with that of the Assessing Authority and nothing more. In an appeal against assessment order, it could not sit in judgment over the Eligibility Certificate granted by the Divisional Level Committee. The principle of law laid down in M/S. Kumar Fuels, Pucca Bagh, Puranaganj, Rampur Vs. State of U.P. & Another (supra) would bind the first appellate authority as well. 9. Next, it has been submitted, owing to the difficulties created by the Assessing Authority and the Appellate Authority, the assessee had been forced to approach the Divisional Level Committee to seek clarification with respect to the exemption granted to it. The Divisional Level Committee, by it's order dated 20.02.2003 made an observation that the assessee was entitled to exemption in terms of Part-II, Clause 3(1) of the exemption notificati....
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....Thus, it has been submitted, the fact that an order had been passed by the Divisional Level Committee on 20.02.2003 and the same came to be unsuccessfully challenged in a writ petition which was dismissed, leaving it open to the assessee to pursue his remedies in the present revision, it would have no impact and no legal consequence may flow from the order dated 20.02.2003. 12. Responding to the above, learned Standing Counsel would submit, it is too late in the day for the assessee to turn around and claim entitlement to exemption in terms of Clause 3, Part-I of Annexure 1 to the exemption notifications, as the assessee had itself made the application to the Divisional Level Committee seeking clarification, as to its entitlement to exemption. Having succumbed to the jurisdiction of the Divisional Level Committee, the assessee cannot escape the consequences of the order dated 20.02.2003 passed on its own application. Further, it has been submitted, no remedy having been availed by the assessee against that order, inasmuch as the assessee did not file any appeal before the Tribunal, it cannot resist the direct legal consequences of the order dated 20.02.2003, which has attained fin....
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....tion notifications differently, so as to over ride the specific order passed by the competent authority, when that order had itself been passed after a conscious application of mind to those notifications itself. 16. Then, against an order that may be passed by the Divisional Level Committee either granting or refusing to grant exemption, a remedy had been provided under Section 10(2) of the Act by filing appeal before the Tribunal. Thus, at the relevant time, the revenue had a remedy of appeal against the grant of Eligibility Certificate to the assessee on 05.02.1998. However, admittedly, that order was never assailed in appeal by the revenue. Other than that, in the case of the assessee/applicant, if his application had been rejected, an additional remedy under Rule 25(3)(c) of the Rules would have been available - to file a review application before the same committee. That situation never arose. Third, upon amendment made to the Act, sub-section (3) was introduced where under the Commissioner was given the power to cancel or amend the Eligibility Certificate, if in his opinion, the facility of exemption or reduction from the rate of tax had been obtained upon any legal or fact....
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.... inherent jurisdiction to make objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri v. Rabindra Nath Chakravarti [LR 60 IA 71] the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction". 19. Same position of law inheres in the ratio of the Division Bench pronouncements of this Court in the case of M/S Gurunanak Surgical Pv....
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....t of the jurisdiction of the Tribunal and is not a matter of irregularity in the conduct of those proceedings. The absence of a condition necessary to found the jurisdiction to make the award or give a decision deprives the award or decision of any conclusive effect. The distinction clearly is between the jurisdiction to decide matters and the ambit of the matters to be heard by a Tribunal having jurisdiction to deal with the same. In the second case, the question of acquiescence or irregularity may be considered and overlooked. When however the question is of the jurisdiction of the Tribunal to make the award under the circumstances summarized above, no question of acquiescence or consent can affect the decision." 21. Relying on the aforequoted principal, the Supreme Court in Jagmittar Sain Bhagat And Others v. Director, Health Services, Harayana And Others, (2013) 10 SCC 136, held: 9. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes a decree having no jurisdiction over the matter, it would amount to nullity as ....