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2011 Supreme(SC) 762
2011 (5) Supreme 529
SUPREME COURT OF INDIA
D.K. Jain and Asok Kumar Ganguly, JJ.
M/s. Agarwal Oil Refinery Corporation, Kanpur — Appellant(s)
versus
The Commissioner of Trade Tax, U.P. Lucknow — Respondent(s)
Civil Appeal No. 2363 of 2007
with
Commissioner of Trade Tax, U.P. — Appellant(s)
versus
S/s Agarwal Oil Refinery Corporation, Kanpur — Respondent(s)
Special Leave Petition (Civil) No. 2148 of 2008
Decided on : 10-8-2011
IMPORTANT POINT
Unless the High Court, as a revisional authority, finds that those factual conclusions by both appellate authorities are perverse, it cannot overturn the same by relying on a judgment which is factually distinguishable.
Headnote:U.P. Trade Tax Act, 1948- Section 11 - Appellant, a dealer purchased burnt mobil oil and refined the same mobil oil-Appellant’s case that assessing authority levied tax on said burnt mobil oil under Section 3-AAAA of Act treating said oil as “old discarded unserviceable store”-Appeal filed by dealer against such assessment was allowed -Appeal thereagainst by Commissioner was also dismissed- Thereupon, the Commissioner, Trade Tax filed revision before High Court and revisional Court overturned the concurrent finding of statutory authorities relying upon decision in case of Commissioner of Sales Tax vs. S/S. Industrial Lubricants –Held unless the High Court, as a revisional authority, finds that those factual conclusions by both appellate authorities are perverse, it cannot overturn the same by relying on a judgment which is factually distinguishable- In the judgment on which High Court relied, there was no finding by Tribunal, last fact-finding authority, on the nature of the goods, which was the subject matter of the disputed transaction- The case on which the High Court relied, was not the case of a dealer who after purchasing burnt mobil oil, manufactures refined mobil oil from that raw material- But the Tribunal in the instant case had found on facts that appellant had manufactured refined mobil oil from the burnt mobil oil- Hence, there was substantial factual difference between instant case and the case on which High Court relied while dealing with revision proceedings before it- High Court erred in relying on a decision, which was factually Distinguishable-Impugned order of High Court quashed and matter remanded to High Court –Appeal allowed. (Paras 14 to 17)
Facts of the Case :
Appellant, a dealer purchased burnt mobil oil and refined the same mobil oil. Appellant’s case that assessing authority levied tax on said burnt mobil oil under Section 3-AAAA of Act treating said oil as “old discarded unserviceable store”.Appeal filed by dealer against such assessment was allowed .Appeal Thereagainst by Commissioner was also dismissed. Thereupon, the Commissioner, Trade Tax filed revision before High Court and revisional Court overturned the concurrent finding of statutory authorities relying upon decision in case of Commissioner of Sales Tax vs. S/S. Industrial Lubricants.
2. Present appeal has been filed against said order of High Court.
Findings of the Court :
The Court held that unless the High Court, as a revisional authority, finds that those factual conclusions by both appellate authorities are perverse, it cannot overturn the same by relying on a judgment which is factually distinguishable. In the judgment on which High Court relied, there was no finding by Tribunal, last fact-finding authority, on the nature of the goods, which was the subject matter of the disputed transaction. The case on which the High Court relied, was not the case of a dealer who after purchasing burnt mobil oil, manufactures refined mobil oil from that raw material. But the Tribunal in the instant case had found on facts that appellant had manufactured refined mobil oil from the burnt mobil oil. Hence, there was substantial factual difference between instant case and the case on which High Court relied while dealing with revision proceedings before it- High Court erred in relying on a decision, which was factually Distinguishable. Impugned order of High Court was quashed and matter was remanded to High Court .Appeal was allowed.
JUDGMENT
Ganguly, J. —
1. Heard learned counsel for the parties.
2. This appeal is directed against the judgment and order passed by the High Court in Trade Tax Revisions in exercise of its revisional jurisdiction under Section 11 of U.P. Trade Tax Act, 1948(hereinafter referred to as the “Act”). The order of the Tribunal dated 22nd April, 1996 relating to assessment years 1988-89 and 1989-90 was impugned in Revisions before the High Court.
3. The case of the appellant, who was the dealer is that it purchased burnt mobil oil and refined the same mobil oil, but the assessing authority levied tax on the said burnt mobil oil under Section 3-AAAA of the Act treating the said oil as “old discarded unserviceable store”.
4. Admittedly, the first appeal, which was filed by the dealer against such assessment, was allowed and then again a further appeal was filed by the Commissioner of Trade Tax against the order of the first appellate authority. The said appeal by the Commissioner was also dismissed. Thereupon, the Commissioner, Trade Tax filed the revision before the High Court and the revisional Court overturned the concurrent finding of the statutory authorities. In doing so, the High Court came to a finding that the present controversy is covered by a decision of the High Court in the case of Commissioner of Sales Tax vs. S/S. Industrial Lubricants reported in1 1984 U.P.T.C. 1101.
5. Following the said decision, the High Court held that burnt mobil oil purchased by the dealer, the appellant herein, is covered under the entry of “old, discarded and unserviceable store” being purchased from unregistered dealer and sold in the same condition. According to the High Court they are liable to be taxed as such under Section 3-AAAA of the Act during the years under consideration.
6. Learned counsel for the appellant while assailing the said finding of the High Court, submitted that the case is not covered by the decision rendered by the High Court in the case of S/S. Industrial Lubricants (supra). The only reasoning on the basis of which the High Court in S/S Industrial Lubricants (supra) allowed the revision is that mobil oil after having been used does not retain the character of mobil oil but it becomes “old, discarded and unserviceable store” and that is why the High Court agreed with the revenue that the burnt mobil oil, being old, discarded or unserviceable store, is liable to be taxed under the notifications dated 1.12.1973 and 4.11.1974 @ 3.5% and 4% respectively.
7. Reference in this connection may be made to the provision of Section 11 of the said Act to appreciate the extent of revisional jurisdiction of High Court in dealing with the concurrent finding of fact. Section 11 of the said Act is set out below:
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 law.
(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 spec
