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2016 DIGILAW 57 (GUJ)

Larsen and Toubro Ltd. v. State of Gujarat

2016-01-08

AKIL ABDUL HAMID KURESHI, MOHINDER PAL

body2016
ORDER Akil Abdul Hamid Kureshi, J. 1. Petitioners have challenged a revisional order dated 15.07.2015 passed by the Commissioner of Commercial Tax in following background:- 1.1 The issue pertains to assessment year 1994-95. The petitioners, having carried the assessment in appeal, the appellate authority by order dated 18.07.2011, allowed the appeal in favour of the petitioners. It is undisputed that in case of these very petitioners, identical issues came to be judged by the VAT Tribunal and were decided in favour of the petitioners by judgment dated 29.11.2010. The Commissioner, however, on the premise that the judgment of the Tribunal is not accepted by the Department and appeal is filed and pending before the High Court, issued notice dated 16.07.2014 why the appellate order dated 18.07.2011 should not be taken in revision. Despite opposition from the petitioners, the Commissioner, in exercise of powers under Section 75 of the Value Added Tax Act, 2003, by the impugned order dated 15.07.2015, revised the appellate order and set aside the same. Consequently, the Commissioner raised demand of Rs. 35,64,967/- from the petitioners. It is this order that the petitioners have challenged in this petition primarily on the ground that merely because the judgment of the Tribunal, which was in favour of the petitioner, has been carried in appeal by the Department, would not be ground to enable the Commissioner to exercise revisional powers and set aside the order of appellate authority. On the other hand, case of the Government is that the revisional powers can be exercised within time period. If no cognizance was taken awaiting outcome of the appeal before the High Court, time period would lapse. 2. In our opinion, the course adopted by the Commissioner is wholly erroneous. The appellate order of the Joint Commissioner was open to challenge by the Department in terms of Section 73 of the Value Added Tax Act, which pertains to appeals. Any order passed by the Joint Commissioner under sub-section (2) of Section 73 would be appealable and if it is the second appeal, the appeal would lie to the Tribunal. Once the Tribunal had decided a certain issue in favour of the assessee, the Commissioner of Value Added Tax was bound by such judgment. The judicial discipline required that the Commissioner did not ignore such pronouncement of the Tribunal. Once the Tribunal had decided a certain issue in favour of the assessee, the Commissioner of Value Added Tax was bound by such judgment. The judicial discipline required that the Commissioner did not ignore such pronouncement of the Tribunal. Merely because the Department was aggrieved by such judgment and challenged the same before the High Court, would not be ground enough to enable the Commissioner to exercise revisional powers and to set aside the order of appellate authority. At best, the Department, in order to pursue the issue further, could and in fact ought to have filed appeal against the order of the Joint Commissioner. 3. Under the circumstances, the impugned order dated 15.07.2015 is set aside. 4. Before closing, we notice that Section 73 of the Value Added Tax Act provides for time limit within which such appeals could be filed. However, Section 77 of the Act provides that in computing period of limitation, provisions of Section 4 and 12 of the Limitation Act will apply. Section 84 of the Act further provides that the appellate authority may admit the appeal beyond period of limitation if it is satisfied that the sufficient cause prevented the appellant from filing such appeal within the period of limitation. Thus, there are ample powers with the Tribunal to ignore the period during which remedy bona fide was pursued or even to condone the delay for sufficient cause being made out. It is for the Department to take suitable action if the appellate order is to be challenged in accordance with law. Certainly in the present case, exercise of revisional powers was not the correct mode. 5. Petition is disposed of accordingly.