FIRST LEASING COMPANY OF INDIA LTD. v. ADDITIONAL COMMISSIONER OF COMMERCIAL TAX, INDORE
2005-09-07
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 March 10, 1998 (annexure P7), passed by the Additional Commissioner, Commercial Tax, Indore, in Revision No. 197/Indore/9/Prantiya which in turn arises out of an order, dated September 23, 1997 (annexure P6), passed by the Appellate Deputy Commissioner in Appeal Case No. 73 of 1997 in relation to the period from April 1, 1989 to December 11, 1994. Heard Shri Manish Nair, learned counsel for the petitioner and Shri A. S. Kutumble, learned Additional Advocate-General with Shri M. Parwal, learned penal lawyer, for the respondents. Having heard learned counsel for the parties at length and having perused the record of the case, I am inclined to allow the writ and while quashing the impugned order (annexure P7), dated March 10, 1998 remand the case to revisionary authority. Since, I have come to a conclusion to remand the case to the revisionary authority, I do not wish to either narrate the entire facts in detail or give any finding on merits one way or other else the very purpose of remand would be defeated and at the same time, it will influence the decision-making process of revisionary authority while passing the orders on merits. The main issue that really falls for consideration and has a bearing in this case is about the liability of the petitioner to pay sales tax/commercial tax on the transaction in question. In other words, the question that arise for consideration and has in fact been answered by the authorities is, whether the petitioner who is the financier and has acted as financier in execution of transaction with respondent No. 4 can be held liable to pay sales tax/commercial tax under the provisions of the State Sales Tax Act. The answer to this question has been given by the authorities against the petitioner and hence, they are in writ reiterating their objection that they are not liable to pay any tax and/or they cannot be subjected to pay any tax on the transaction in question.
The answer to this question has been given by the authorities against the petitioner and hence, they are in writ reiterating their objection that they are not liable to pay any tax and/or they cannot be subjected to pay any tax on the transaction in question. The issue of this nature was subject-matter of judicial debate in several leading cases decided by the Supreme Court beginning from K. L. Johar's case reported in [1965] 16 STC 213; AIR 1965 SC 1082 , Sundaram Finance Ltd. [1966] 17 STC 489; AIR 1966 SC 1178 , Jay Bharat's case [2000] 120 STC 1; [2000] 7 SCC 165 and Charanjit Singh Chadha v. Sudhir Mehra [2001] 7 SCC 417. What I have noticed on perusal of the impugned revisionary order is that the learned revisionary authority has not taken note of any of these decisions much less given impugned finding keeping in view the law laid down by the Supreme Court in the aforesaid cases. When the law is laid down by the Supreme Court then, what differs is only its applicability depending upon the facts of each case. In other words, if the facts are distinguishable then law may not apply. So it is the duty of all courts in the country to examine the facts of each case strictly in accordance with the law laid down by the Supreme Court of India. Article 141 of Constitution makes it obligatory upon every court in the country to follow the law laid down by the highest court in our country, in letter and spirit. Deciding an issue without referring to any of the decisions of the Supreme Court though holding the field vitiates the order. This itself is enough for this court to set aside the impugned order. This court (writ court) cannot for the first time, i.e., at first instance examine the true nature of transaction for deciding the liability of the petitioner. It has got to be done in the first instance by the authorities below. It is only then the writ court can be called upon to examine the finding whether it is capable of being sustained or not and whether it was rendered in the light of the law laid down by the Supreme Court in aforementioned cases.
It has got to be done in the first instance by the authorities below. It is only then the writ court can be called upon to examine the finding whether it is capable of being sustained or not and whether it was rendered in the light of the law laid down by the Supreme Court in aforementioned cases. It is for this reason, I find it difficult, rather not proper, to embark upon the factual inquiry based upon the documents for deciding the question of liability and remand the case to the revisionary authority. Accordingly and in view of aforesaid discussion, the petition succeeds and is allowed. The impugned order, dated March 10, 1998 (annexure P7), passed by the Additional Commissioner, Commercial Tax, Indore, in Revision No. 197/Indore/9/Prantiya is set aside/quashed by writ of certiorari. The case is remanded to revisionary authority, i.e., Upper Commissioner, Commercial Tax, Indore, for again deciding Revision No. 197/Indore/9/Prantiya after affording an opportunity of hearing to the petitioner and to all those parties who are likely to be affected as he may deem fit within 6 months strictly in accordance with law and keeping in view the aforesaid observations. No costs.