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2017 Supreme(UK) 387
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
K.M. JOSEPH, V.K. BIST, JJ.
M/s Gayatri Iron & Steel - Appellant
Versus
The State of Uttarakhand and Others - Respondents
Special Appeal No. 904 of 2017
Decided On : 14-12-2017
For the Appellant :Mr. N.K. Arora, Advocate with Mr. Jitendra Chaudhary, Mr. B.R. Garg and Mr., Gayatri, Advocates
For the Respondents: Mr. Mohit Maulekhi, Brief Holder
Headnote:
Writ petition filed seeking quashing of impugned order passed by the Additional Commissioner, Commercial Tax Haridwar Zone, Haridwar District Haridwar. Appellant/writ petitioner is registered under the Uttarakhand VAT Act, 2005 and the Central Sales Tax Act, 1956. Assessment was completed under the Central Sales Tax Act, 1956 in respect of its Inter-State transactions, and the assessment order was passed. Appellant/writ petitioner was taxed at the rate of 1 per cent. This was done, apparently, on the basis that the appellant/writ petitioner produced ‘C’ Forms from its buyers, and it is on the said basis that the assessment was completed. Notice purported to be issued under Section 29 of the Act; it is dated 20.11.2015 (though it may be noted that it is seen dated in the month of October, 2015). Appellant/writ petitioner submitted its reply. Thereafter, the appellant/writ petitioner received notice issued by the Commissioner, apparently, purporting to invoke the powers available to him under Section 29 (4) of the Act. Appellant/writ petitioner gave its response. Thereafter, the Commissioner proceeded to pass impugned order dated 15.02.2016. Learned Single Judge did not find it fit to interfere with the matter. Appeal was filed by the appellant/writ petitioner. Court held that the power under Section 29(1) of the Act would not be available in this case for the reason that Section 29 presupposes an order, which is passed under Section 25 or Section 26 of the Act, and it may be noted in this case that this is not an assessment under the Act but it is an assessment, which is carried out in respect of a transaction, which is covered by the Central Sales Tax Act, 1956. Court further held that the power available under the Act to carry out regular assessment is contained in Sections 25 and 26 of the Act. Section 29 of the Act contemplates, undoubtedly, the existence of an assessment under Sections 25 and 26 of the Act. It is thereafter that power is given to assess or reassess as provided in Section 29 of the Act. Court dismissed the appeal.
Fact of the Case:
Appellant/writ petitioner is registered under the Uttarakhand VAT Act, 2005 and the Central Sales Tax Act, 1956. Assessment was completed under the Central Sales Tax Act, 1956 in respect of its Inter-State transactions, and the assessment order was passed. Appellant/writ petitioner was taxed at the rate of 1 per cent. This was done, apparently, on the basis that the appellant/writ petitioner produced ‘C’ Forms from its buyers, and it is on the said basis that the assessment was completed. Notice purported to be issued under Section 29 of the Act; it is dated 20.11.2015 (though it may be noted that it is seen dated in the month of October, 2015). Appellant/writ petitioner submitted its reply. Thereafter, the appellant/writ petitioner received notice issued by the Commissioner, apparently, purporting to invoke the powers available to him under Section 29 (4) of the Act. Appellant/writ petitioner gave its response. Thereafter, the Commissioner proceeded to pass impugned order dated 15.02.2016.
Finding of the Court:
Court held that the power under Section 29(1) of the Act would not be available in this case for the reason that Section 29 presupposes an order, which is passed under Section 25 or Section 26 of the Act, and it may be noted in this case that this is not an assessment under the Act but it is an assessment, which is carried out in respect of a transaction, which is covered by the Central Sales Tax Act, 1956. Court further held that the power available under the Act to carry out regular assessment is contained in Sections 25 and 26 of the Act. Section 29 of the Act contemplates, undoubtedly, the existence of an assessment under Sections 25 and 26 of the Act. It is thereafter that power is given to assess or reassess as provided in Section 29 of the Act.
Issues: Whether the power under Section 29(1) of the Act would be available in this case?
Ratio Decidendi: The power under Section 29(1) of the Act would not be available in this case for the reason that Section 29 presupposes an order, which is passed under Section 25 or Section 26 of the Act, and it may be noted in this case that this is not an assessment under the Act but it is an assessment, which is carried out in respect of a transaction, which is covered by the Central Sales Tax Act, 1956.
Final Decision: Appeal dismissed.
K.M. JOSEPH, J.
1. Appellant is the writ petitioner. The writ petition was filed seeking the following reliefs:
“(a) Issue a writ, order or direction in the nature of certiorari, calling for the original record and pleased to quash the impugned order dated 15-02-2016 (ANNEXURE-7) passed by the respondent no. 3 i.e. The Additional Commissioner, Commercial Tax Haridwar Zone, Haridwar District Haridwar.
(b) Issue a writ order or direction in the nature of mandamus that the assessing authority i.e. the respondent no.4 shall not initiate re-assessment proceedings under section 29 of Uttarakhand VAT Act 2005 on the strength of impugned order dated 15-02-2016.”
2. The case, in brief, of the appellant/writ petitioner is as follows: Appellant/writ petitioner is registered under the Uttarakhand VAT Act, 2005 (hereinafter referred to as the “Act”). Appellant/writ petitioner is also registered under the Central Sales Tax Act, 1956. The appellant/writ petitioner was assessed under the Central Sales Tax Act, 1956 in respect of its Inter-State transactions, and the assessment order was passed vide Annexure No. 2. Assessment was completed under the Central Sales Tax Act, 1956. The appellant/writ petitioner was taxed at the rate of 1 per cent. This was done, apparently, on the basis that the appellant/writ petitioner produced ‘C’ Forms from its buyers, and it is on the said basis that the assessment was completed. Annexure No. 3 to the writ petition is a notice purported to be issued under Section 29 of the Act; it is dated 20.11.2015 (though it may be noted that it is seen dated in the month of October, 2015). The appellant/writ petitioner submitted its reply. Thereafter, the appellant/writ petitioner received Annexure No. 5 notice issued by the Commissioner, apparently, purporting to invoke the powers available to him under Section 29 (4) of the Act. The said annexure is dated 11.01.2016. The appellant/writ petitioner gave its response vide Annexure No. 6. Thereafter, the Commissioner proceeded to pass Annexure No. 7 dated 15.02.2016. It is the said order, which came to be questioned before the learned Single Judge. This was besides seeking other relief, which we have already noted.
3. The learned Single Judge did not find it fit to interfere with the matter. The learned Single Judge dealt with the arguments of the appellant/writ petitioner that he was only a seller and that the ‘C’ Forms were furnished to it by the buyers and if there is any irregularity or illegality in the same, it is the buyers, who must be held responsible. The arguments of the appellant/writ petitioner failed and the writ petition came to be dismissed. Hence, the appeal.
4. We heard Mr. N.K. Arora, learned counsel for the appellant/writ petitioner and Mr. Mohit Maulekhi, learned Brief Holder for the State of Uttarakhand/Revenue.
5. Mr. N.K. Arora, learned counsel for the appellant/writ petitioner would submit that the learned Single Judge has purported to observe that the appellant/writ petitioner had obtained the ‘C’ Forms fraudulently; this is not correct and cannot be sustained. He would further submit that Section 29 of the Act is a code by itself. He would next submit that the learned Single Judge has even erroneously doubted whether the transactions in question are Inter-State or Intra-State. He would submit that the assessment was completed invoking the power available to the authorities in the State by virtue of Section 9(2) of the Central Sales Tax Act, 1956, the transactions were, in fact, Inter-State transactions and not Intra-State transactions. He would next submit that the decision in the case of The Commissioner of Sales-tax, U.P. Vs. M/s Bhagwan Industries (P) Ltd., Lucknow reported in AIR 1973 SC 370 is not applicable. He would further rely on the judgments of the Hon’ble Apex Court in the case of Unique Butyle Tube Industries (P) Ltd. Vs. U.P. Financial Corporation and others reported in (2003) 2 SCC 455, as also, in the case of Prakash Nath Khanna
