ABHAY KUMAR DILIP KUMAR v. COMMISSIONER OF COMMERCIAL TAX, INDORE
2005-08-04
A.M.SAPRE
body2005
DigiLaw.ai
ORDER A. M. Sapre J. - By filing this writ under article 226/227 of the Constitution of India, the petitioner seeks to challenge the revisionary order, dated April 22, 1999 passed in revision No. 7/99/Prantiya (annexure C) by Deputy Commissioner, Commercial Tax, Ratlam, which in turn arises out of an assessment order dated August 31, 1998 (annexure B), passed by the Assistant Commercial Tax Officer, Ratlam. Petitioner, a dealer, is engaged in business of sale of lime, cement pipes, etc. An assessment order was passed for the period in question (April 1, 1993 to March 31, 1994) by the assessing officer (AO) on December 10, 1996. It is in this assessment certain transactions amounting to Rs. 6,55,683 entered into between petitioner and one buyer of petitioner, M/s. Merdia Steel Ltd., Ratlam, were taxed at the concessional rate of tax of four per cent. However, on an audit objection being raised, proceedings for reassessment under section 19 of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed and replaced by the Madhya Pradesh Commercial Tax Act, 1994) were initiated against the petitioner in relation to afore-mentioned transaction. According to AO, benefit of concessional rate of tax of four per cent was not available to the petitioner (dealer) because firstly, the petitioner did not file proper declaration forms required for claiming concessional rate of tax and secondly, the purchaser does not hold requisite certificate as contemplated under section 16 ibid. By order dated March 31, 1998 (annexure B) the contention of AO prevailed and accordingly, the impugned transaction which was initially taxed at the rate of four per cent was withdrawn and instead it was taxed at the usual rate applicable, thereby calling upon the petitioner to pay the difference between what they have paid, i.e., four per cent and what is payable, i.e., eight per cent. This order was challenged by the petitioner in revision. However, by impugned order, the revisionary authority dismissed the revision and upheld the order (annexure B). It is against these orders, the petitioner has felt aggrieved and filed writ. Notice of the writ was issued to the respondents. They are served. Return has been filed. Heard Shri Anuj Bhargava, learned counsel for the petitioner and Shri L. R. Bhatnagar, learned Government Advocate for the respondents. Learned counsel for the petitioner Mr.
It is against these orders, the petitioner has felt aggrieved and filed writ. Notice of the writ was issued to the respondents. They are served. Return has been filed. Heard Shri Anuj Bhargava, learned counsel for the petitioner and Shri L. R. Bhatnagar, learned Government Advocate for the respondents. Learned counsel for the petitioner Mr. Anuj Bhargava, placing reliance on the decision rendered in the case of K.G. Industries v. Sales Tax Officer [1999] 113 STC 49 (MP); [1999] 32 VKN 69, contended that once the petitioner, i.e., dealer submits/furnishes the requisite declaration in assessment proceedings needed for claiming concessional rate of tax mentioning therein the information, then, in such event, they become entitled to claim the benefit of concessional rate of tax. According to learned counsel, it is not necessary for the dealer to make any roving inquiry about the purchaser before submitting the declaration. Learned counsel also contended that no case of reopening can be made out on the basis of the audit note. In reply, learned counsel for the State supported the impugned orders. Having heard learned counsel for the parties and having perused the record of the case, I am inclined to allow the writ and while quashing the impugned revisionary order remand the case for deciding the revision afresh on merits. In my considered view, the learned revisionary authority while deciding the revision did not discuss any legal provision nor case law nor facts, much less in its proper perspective keeping in view, the facts involved in this case and the stand taken by the petitioner. It is the duty of revisionary authority to take note of facts involved in the case, then the concerned legal provisions such as sections/rules and then take note of the submission of the petitioner and then decide the case after taking into consideration the case law governing the controversy laid down by the apex court and High Court. Needless to observe, reasons for accepting or rejecting the conclusion has got to be mentioned in the order so as to make the order in accordance with law for being challenged in Higher Courts, if occasion so arises. In the present case, aforementioned requirement was not taken note of. The order impugned is cryptic and short of reasoning, much less cogent and judicial reasoning. It is thus, not legally sustainable.
In the present case, aforementioned requirement was not taken note of. The order impugned is cryptic and short of reasoning, much less cogent and judicial reasoning. It is thus, not legally sustainable. It does not take into consideration nor does it decide any of the submissions urged by the petitioner though they arise out of the case. In this view of the matter, this court cannot uphold such order, nor can it decide the issue in writ in the absence of any finding rendered by the revisionary authority on the objections taken by the petitioner against the impugned orders. Remand in such seems inevitable. Accordingly and in view of foregoing discussion, the petition succeeds and is allowed. Impugned order, dated April 22, 1999 (annexure C), passed by respondent No. 3, i.e., Deputy Commissioner, Commercial Tax, Ratlam is set aside. The case, i.e., revision is remanded to respondent No. 3 for deciding the same on merits within 6 months on all the questions urged by the petitioner which are taken note of supra, after affording an opportunity to the petitioner. No costs. Certified copy within one week as per rules.