In Support Of His Contention, Learned Counsel For The Applicants Hasplaced Reliance Upon The Judgement Of Apex Court In Jute Corporationof India Limited v. Commissioner Of Income Tax And Another, 1991

Court No. - 1 1.Case :- SALES/TRADE TAX REVISION No. - 338 of 2012Revisionist :- M/S Faizal ChemicalsOpposite Party :- The Commissioner Commercial TaxCounsel for Revisionist :- Rakesh Ranjan Agrawal,Suyash AgarwalCounsel for Opposite Party :- C.S.C. 2.Case :- SALES/TRADE TAX REVISION No. - 336 of 2012Revisionist :- M/S Ujala ChemicalsOpposite Party :- The Commissioner Commercial Tax 3.Case :- SALES/TRADE TAX REVISION No. - 339 of 2012Revisionist :- M/S Faizal ChemicalsOpposite Party :- The Commissioner Commercial Tax 4.Case :- SALES/TRADE TAX REVISION No. - 337 of 2012Revisionist :- M/S Ujala ChemicalsOpposite Party :- The Commissioner Commercial Tax Hon'ble Piyush Agrawal,J. Since the controversy and facts involved in the aforesaid connectedsales/trade tax revisions are the same, therefore, they are being decidingtogether by a common order. Heard Sri Suyash Agarwal, learned counsel for the revisionists andSri A.C. Tripathi, learned Standing Counsel for the State. The present revisions have been filed against the order dated25.2.2012, passed by Commercial Tax Tribunal, Bareilly in SecondAppeal Nos 347 of 2011 (Assessment Year 2001-02), 348 of 2011(Assessment Year 2002-03), 349 of 2011 (Assessment Year 2003-04) andin Sales/Trade Tax Revision No. 336 of 3012, Second Appeal Nos. 320 of2011 (Assessment Year 2001-02), 321 of 2011 (Assessment Year 2002-03), 322 of 2011 (Assessment Year 2003-04, 321 under the Central SalesTax Act. In all the appeals, common questions of law have been framedwhich are as under: “(i) Whether on the facts and in the circumstances of the casethe Tribunal was right in affirming the remand order passed bythe Additional Commissioner, Grade-2 (Appeal)-H, Commercial Tax Bareilly dated 27.5.2011 for Assessment Year 2001-02(Central) ignoring that the assessing authority while passing theoriginal assessment order dated 08.12.2004 has accepted thepurchases amounting to Rs. 66,79,530/- as purchase on behalf ofthe Ex. U.P. Principals and Central sale of essential oil covertagainst 4 Form C for Rs. 35,63,969/- no fresh material has beenbrought on the record, as such the reassessment proceeding ischange of opinion. (ii) Whether, in any view of the matter the remand order passedby the appellate authority dated 27.5.2011 was rightly sustainedby the Tribunal without adjudicating the subject matter ofappeal raised in the memorandum of Second Appeal speciallywhen the assessing authority travelled beyond the subject matterof the sanction order dated 15.9.2006 in so far as rejection ofCentral Sale against Form-3 amounting to Rs. 33,13,969/-.” Learned counsel for the revisionists submits that the second roundlitigation as the Tribunal has already remanded the matter. Now, it is asecond remand order. He further submits that the applicants hadpurchased goods on behalf of Ex. U.P. Principals. The goods werepurchased as per the purchase order and the goods were sent within threedays as availability of vehicle and has only charged his commission. Thisfact is well established from the assessment order. The reassessmentproceedings were only initiated on the ground that tax could not be leviedon the essential oil. He also submits that all documents and materials wereavailable on record which shows otherwise there is no fresh material and,therefore, it is a change of opinion which is not permissible under section21 of the Act. He further submits that the Tribunal has erred in remandingthe matter holding that the First Appellate Authority is not competent tolook into the facts and verify the books of accounts of the applicants. In support of his contention, learned counsel for the applicants hasplaced reliance upon the judgement of Apex Court in Jute Corporationof India Limited vs. Commissioner of Income Tax and another, 1991 In support of his contention, learned counsel for the applicants hasplaced reliance upon the judgement of Apex Court in Jute Corporationof India Limited vs. Commissioner of Income Tax and another, 1991 Supp. (2) SCC 744. So far as remand is concerned he relied upon thejudgement of this Court in Tata Iron & Steel Company Limited vs.Commissioner of Trade Tax U.P. Lucknow, 2006 NTN (Vol.30)-399.He prays for allowing the revisions. Per contra, the Standing Counsel supports the order passed by theauthorities below. He submits that the dealer has failed to bring on recordthe material to justify the purchases for goods on behalf of the Ex. U.P.Principals.He submits that on the essential oil the central tax could not belevied as the provision of the Act and, therefore, the reassessmentproceedings have been rightly initiated. He further submits that since thedealer has failed to show the purchases for goods on behalf of the Ex. U.P.Principals as the reassessment order was passed ex-parte. In the interest ofjustice, the matter was remanded back in favour of the dealer to justify hiscase. In support of his claim he prays for dismissal of the revisions. After hearing the parties, the Court has perused the records. Admittedly, the dealer has acted as a commission agent forpurchase of goods for and on behalf of Ex. U.P. Principals to which thevarious agreements have been referred in the original assessment order.The Tribunal being the last court of fact ought to have considered on legalissues as well as on the fact. This proceeding is not the originalproceeding but it is a reassessment proceeding. The burden is heavily onthe revenue to prove its case. The reassessment order was passed againstthe dealer. Against which the first appeal was preferred and the matterwas remanded. Against the second remand, the assessee has already filedmaterials to prove its case though it is incumbent upon the Tribunal tohave decide the issue itself. It is not the case that the dealer has failed toproduct material to prove its case. The Tribunal has further erred inholding that under Section 9 of U.P. Trade Tax Act the first appellateauthority is not competent to look into the facts of the case. In view of the aforesaid facts and circumstances of the case andwithout going into the merits of the case, the impugned orders passed by the Commercial Tax Tribunal, Bareilly is set aside. The revision isallowed. The matter is remanded back to the Tribunal to decide the issueafresh only on the basis of material available before the Tribunal. Thematter is remanded back to the Tribunal to decide the issue as observedabove. It is expected that since the matter is very old, the Tribunal maytake all possible effort to decide the same within a period of three monthsfrom the date of receipt of a copy of this order. The revisionists undertake to serve the copy of this order within afortnight. In the event of failure on the part of the revisionists, benefit ofthis order shall not be accorded to the revisionists. The questions of law are answered accordingly. Order Date :- 6.4.2022Puspendra