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CASE NO.: Appeal (civil)  1538 of 2007

PETITIONER: M/s Rashtriya Audyogik Sansthan

RESPONDENT: Commissioner of Trade Tax, U.P.

DATE OF JUDGMENT: 22/03/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Civil) No. 21383-21384 of 2005)

Dr. ARIJIT PASAYAT, J.

Leave granted.

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

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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.\027(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 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-

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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.

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Explanation \026 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.