Court No. - 7
Case :- SALES/TRADE TAX REVISION No. - 324 of 2018 Applicant :- S/S Sri Ganesh Enterprises Opposite Party :- The Commissioner Commercial Tax Counsel for Applicant :- Aditya Pandey Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Aditya Pandey, learned counsel for the applicant and Sri Jagdish Mishra learned Standing Counsel for the State.
2. The present revision has been heard on the following question of law :-
Whether in the absence of any return filed by the U.P. Act 30 of 2007 (Entry Tax 2007) the application filed under Section 59 of the VAT Act read with Section 30 of U.P. Act could have been rejected as barred in law?
3. The present revision has been filed against the order of the Commercial Tax Tribunal, Lucknow dated 17.09.2018 by which the Tribunal has rejected the appeal filed by the assessee against the order of the Commissioner dated 18.12.2017 passed under Section 59 of the UP VAT Act, 2008.
3. The Commissioner rejected the application filed by the assessee on the reasoning that the assessee had already filed his return under the VAT Act and therefore the application under Section 59 of the Act was barred.
4. The short argument advanced by learned counsel for the assessee is that the assessee filed an application under Section 59 of the U.P. Vat Act, 2008 as made applicable by virtue of Section 13 (XXIX) of the U.P. Act No. 30 of 2007. That application has been wrongly rejected being barred by Section 59(1) of the U.P. Vat Act though the assessee had never filed any return under the U.P. Act No. 30 of 2007. Further, it has been submitted that the filing of the return under the U.P. Vat Act could not act as a bar to maintainability of the application under the U.P. Act No. 30 of 2007."
5. Upon instruction, learned Standing Counsel clearly states that no return under the provision of the U.P. Tax Act No. 30 of 2007 had been filed by the assessee. As a consequence of the aforesaid admission it emerges that the bar of law invoked against the applicant did not exist inasmuch as the application had not been filed by the assessee with reference to any notification entry under the U.P. VAT Act, 2008. In fact that application had been filed with reference to the scheduled entry under the U.P. Act No. 30 of 2007 pertaining to entry tax only to the exclusion of VAT Act.
6. Further the application itself was filed under Section 59 of the VAT Act read with Section 13 of the U.P. Act 30 of 2007 and was therefore clearly referable to be Entry Tax Act alone.
7. Accordingly the order passed by the Tribunal and the Commissioner based on the presumption raised that the application had been filed under the VAT Act and its rejection on the reasoning that the same was not maintainable since the applicant had filed the return under the VAT Act, is clearly perverse and erroneous. It cannot be sustained. The revision must succeed.
6. The question of law is answered in the negative that is in favour of the assessee and against the revenue.
7. The Commissioner may now pass a fresh order on the assesses's application on merits.
8. The present revision is accordingly allowed.
Order Date :- 27.11.2018 S.Chaurasia