COMMISSIONER, TRADE TAX, U. P. , LUCKNOW v. R. S. ENTERPRISES.
2008-07-08
PRAKASH KRISHNA
body2008
DigiLaw.ai
JUDGMENT PRAKASH KRISHNA, J. - Heard learned standing counsel. None is appearing on behalf of the dealer - opposite party. The present revision is directed against the order passed by the Trade Tax Tribunal, Muzaffarnagar in Second Appeal No. 94 of 1997 relevant to the assessment year 1991-92 (Central). The dealer - opposite party carries on the business of purchase and sale of gunny bags. It purchased the gunny bags from outside State of U.P. and disclosed such purchases at Rs. 1,92,373 against form C and admitted tax liability at the rate of one per cent under Notification No. S.T.-II-2051/22(2)(1)/88/Act/74-75 dated September 13, 1990. The assessing authority accepted the account books of the dealer - opposite party but did not agree with the contention of the dealer that it is taxable at the rate of one per cent. It was of the view that the said notification was amended by Notification No. S.T.-II-2380/11-2(3)/88 dated November 30, 1990 and therefore, he held that the dealer is liable to pay tax at the rate of four per cent. The said order was challenged unsuccessfully before first appellate authority. The dealer - opposite party filed the second appeal before the Tribunal. The said appeal has been allowed by the order under revision. The Tribunal has allowed the revision on a short ground that the amended notification was not made public, therefore, it shall not be deemed to have been published for the assessment year 1991-92. In the memo of revision, the following questions of law have been framed : (i) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to determine the tax liability on the Central sale at the rate of one per cent despite by Notification No. 2380 dated November 30, 1990 the provision of concession of the rate of tax was deleted ? (ii) Whether the Tribunal is legally justified to observe that Notification No. 2380 dated November 30, 1990 was not published in Gazette till March 31, 1992 despite it was published in U.P. gazette, Extraordinary dated December 1, 1990 and reported in 1991 UPTC Vol. II ?
(ii) Whether the Tribunal is legally justified to observe that Notification No. 2380 dated November 30, 1990 was not published in Gazette till March 31, 1992 despite it was published in U.P. gazette, Extraordinary dated December 1, 1990 and reported in 1991 UPTC Vol. II ? The learned standing counsel submits that the controversy involved in the present case is squarely covered by a decision of this court in Commissioner of Sales Tax v. Jagannath Dudadhar [2005] UPTC 868, wherein it has been held that a notification shall be deemed to have been published from the date mentioned in the notification and the fact that the same was not made available to the public is of no consequence. In this view of the matter, the view taken by the Tribunal that since the said notification was not made available to the public for the assessment year 1991-92 and therefore, it shall not be deemed to be published in that assessment year is legally incorrect. Following the aforesaid decision, it is held that the dealer - opposite party is liable to pay the tax at the rate of four per cent as per the amended notification dated November 30, 1990. The revision is allowed. The order of the Tribunal is set aside and the questions of law raised in the revision are decided in favour of the Revenue and against the dealer - opposite party by holding that the notification in question has become effective with effect from December 1, 1990. No order as to costs.