2020 (2) TMI 476

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....l preferred by the revisionist has been rejected and the order of first appellate authority dated 28.10.2015 has been upheld. 3. It has been submitted by learned counsel for the revisionist that appeal was admitted on the following substantial question of law:- "4. Whether, the order for enhancement of Tax in all the above three years passed by Deputy Commissioner Commercial Tax, Sector-2, Lakhimpur Kheri dated 27.02.2012, 15.03.2014 & 28.02.2014 and order passed in appeal before the Additional Commissioner Grade II (Appeal) Commercial Tax Sitapur, dated 26.10.2015 are sustainable in the eyes of law as the revisionist's activity is only under PDS Schemes of the Govt. hence are exempt under the Provisions of UP VAT Act." 4....

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....ile considering the case of the revisionist noted that the revisionist is only disputing the rate of purchase of wheat and rice, as they had accepted the liability for payment of VAT. Considering the purchase of wheat at the rate of Rs. 1,000/- while the assessment was done at the rate of Rs. 1161.62/- and similarly the assessment was done with regard to rice at the rates published by the Government of India, which are Rs. 1580.07/-. The First Appellate Authority rejected the appeal holding that the revisionist could not produce any evidence or purchase invoice or indication in their balance sheet with regard to the miscellaneous items. 7. The revisionist subsequently being aggrieved by the order of First Appellate Authority preferred Se....

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....ld not be shown that he has canvassed either before the First Appellate Authority or before the Second Appellate Authority or that the order of the Second Appellate Authority suffers from any infirmity in this regard. 10. In the case of Commissioner of Sales Tax, U.P. v. Mohan Brickfield, Agra, (2006) 12 SCC 203, the Supreme Court has dealt with the powers of the High Court in dealing with the revision filed under Section 11 of the Act and has held as follows: "The parameters of exercising power under the said provision were considered by this Court in Commissioner of Sales Tax, U.P. v. Kumaon Tractors & Motors ((2002) 9 SCC 379), it was inter alia noted as follows: "8. It appears that the High Court ignored the provisi....

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....t of its order. 3. When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order. 4. When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it. Stating the position compendiously, it is only a question that has been raised before or decided by the Tribunal that could be held to arise out of its order." 12. The Supreme Court has again reiterated the same principles in the case of Commissioner of Gift Tax, Bombay v. Smt. Kusumberi D. Mahadevia, (1980) 122 ITR 38. 13. This Court in the case of Commissio....