Rashtriya Audyogik Sansthan Vs. Commissioner of Trade Tax, U.P.  Insc 319
(22 March 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
(Arising out of S.L.P. (Civil) No. 21383-21384 of 2005) Dr. ARIJIT PASAYAT,
Challenge in these appeals is to the order passed by a learned Single Judge
of the Allahabad High Court disposing of several revision petitions filed by
the respondent-Commissioner of Trade Tax, Uttar Pradesh, under the Uttar
Pradesh Trade Tax Act, 1948 (in short 'Act').
The factual position which is almost undisputed is as under:
Two petitions for revision under Section 11 of the Act were filed before the
High Court questioning correctness of the common order dated 28th May, 1997,
passed by the Trade Tax Tribunal, Agra (in short the 'Tribunal'). The disputes
related to the assessments for assessment year 1987-88 under the Act and the
Central Sales Tax Act, 1956 (in short the 'Central Act'). Demands were raised
by orders of the assessment dated 17.9.1993. The demands were challenged before
the Assistant Commissioner (Judicial) II, Trade Tax, Agra who remitted the
matter to the Tax Assessing Officer for fresh assessment. Appellant
(hereinafter described as 'assessee') filed appeals before the Tribunal. The
appeals were allowed and the first appellate orders dated 22.7.1996 were set
aside. As noted above, Revenue filed two revision applications under Section 11
of the Act before the High Court. By the impugned order dated 20.5.2005, the
revisions were allowed and the orders of the Tribunal were set aside and that
of the first Appellate Authority restored.
Though many points were urged in support of the appeals it was primarily
contended that without formulating any question of law, the exercise of
jurisdiction under Section 11 of the Act was impermissible.
The learned counsel for the respondent on the other hand supported the order
of the High Court saying that though the questions have not been specifically
indicated the basic issues for determination were taken note of and the
impugned orders were passed.
We shall first deal with the power of the High Court in dealing with the
revision petition. Section 11 of the Act reads as follows:
"11. Revision by High Court in special cases.(1) Any person aggrieved
by an order made under sub-section (4) or sub-section (5) of Section 10, other
than an order under sub- section (2) of that section summarily disposing of the
appeal, or by an order passed under Section 22 by the Tribunal, may, within
ninety days from the date of service of such order, apply to the High Court for
revision of such order on the ground that the case involves any question of
(2) Any person aggrieved by an order made by the Revising Authority or an
Additional Revising Authority refusing to state the case under this section, as
it stood immediately before April 27, 1978, hereinafter referred to as the said
date, may, where the limitation for making an application to the High Court
under sub-section (4), as it stood immediately before the said date, has not expired,
likewise apply for revision to the High Court within a period of ninety days
from the said date.
(3) Where an application under sub-section (1) or sub-section (3), as they
stood immediately before the said date, was rejected by the Revising Authority
or an Additional Revising Authority on the sole ground that the period of one
hundred and twenty days for making the reference, as specified in the said sub-
section (1), has expired, such applicant may apply for revision of the order
made under sub-section (2) of Section 10, to the High Court within sixty days
from the said date on the ground that the case involves any question of law.
(4) The application for revision under sub- section (1) shall precisely
state the question of law involved in the case, and it shall be competent for
the High Court to formulate the question of law or to allow any other question
of law to be raised.
(5) Every application for making a reference to the High Court under
sub-section (1) or sub-section (3), as they stood immediately before the said
date, pending before the Revising Authority or an Additional Revising Authority
on the said date, shall stand transferred to the High Court. Every such
application upon being so transferred and every application under sub-section (4)
as it stood immediately before the said date, pending before the High Court on
the said date, shall be deemed to be an application for revision under this
section and disposed of accordingly.
(6) Where the High Court has before the said date, required the Revising
Authority or an Additional Revising Authority to state the case and refer it to
the High Court under sub- section (4), as it stood immediately before the said
date, such authority shall, as soon as may be, make reference accordingly.
Every reference so made, and every reference made by such authority before the
said date in compliance with the requirement of the High Court under
sub-section (4), as it stood before the said date, shall be deemed to be an
application for revision under this section and disposed of accordingly.
(6-A) Where the Revising Authority or an Additional Revising Authority has,
before the said date, allowed an application under sub- section (1) or
sub-section (3), as they stood immediately before the said date, and such authority
has not made reference before the said date, it shall, as soon as may be, make
reference, to the High Court. Every such reference, and every reference already
made by such authority before the said date and pending before the High Court
on the said date, shall be deemed to be an application for revision under this
section and disposed of accordingly.
(7) Where an application under this section is pending, the High Court may,
on an application in that behalf, stay recovery of any disputed amount of tax,
fee or penalty payable, or refund of any amount due, under the order sought to
be revised :
Provided that no order for the stay of recovery of such disputed amount
shall remain in force for more than thirty days unless the applicant furnishes
adequate security to the satisfaction of the Assessing Authority concerned.
(8) The High Court shall, after hearing the parties to the revision, decide
the question of law involved therein, and where as a result of such decision,
the amount of tax, fee or penalty is required to be determined afresh, the High
Court may send a copy of the decision to the Tribunal for fresh determination
of the amount, and the Tribunal shall thereupon pass such orders as are
necessary to dispose of the case in conformity with the said decision.
(8-A) All applications for revision or orders passed under Section 10 in
appeals arising out of the same cause of action in respect of the same
assessment year shall be heard and decided together.
Provided that where any one or more of such applications have been heard and
decided earlier, if the High Court, while hearing the remaining applications,
considers that the earlier decision may be a legal impediment in giving relief
in such remaining application, it may recall such earlier decisions and may
thereafter proceed to hear and decide all the applications together.
(9) The provisions of Section 5 of the Limitation Act,
1963, shall, mutatis mutandis, apply to every application, for revision
under this section.
Explanation For the purpose of this section, the expression "any
person" includes the Commissioner and the State Government."
The parameters for 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. x x x x x It appears that the High Court ignored the provisions of
Section 11 of the Trade Tax Act which confers limited jurisdiction to interfere
with the order of the Tribunal only on the question of law, that too the said
question of law is required to be precisely stated and formulated. Instead of
deciding the question of law, the High Court simpliciter re- appreciated the
evidence and ignored the material documents maintained and produced by the assessee,
that is, books of accounts, bills and Form 'C' submitted by it.
In this view of the matter, the impugned order cannot be sustained."
The aforesaid aspects were also noted by this Court in Commissioner, Sales
Tax, U.P. v. M/s Mohan Brickfield, Agra (2006 (2) SCALE 17).
Accordingly, we set aside the impugned order of the High Court and remit the
matter to the High Court so that question of law, if any, which arises in the
facts of the case can be formulated. We make it clear that we have not
expressed any opinion as to whether any question of law arises or not. Only if
question of law arises, then only the revisional jurisdiction can be exercised.
The appeals are accordingly disposed of. There will be no order as to costs.
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