Heard Sri Nishant Mishra, learned counsel for the revisionist and learned Standing Counsel for the State-respondents.
These six trade tax revisions have been filed against a common order dated 20th July, 2011 passed in Second Appeal No. 395 of 2011, Second Appeal No. 396 of 2011, Second Appeal No. 397 of 2011, Second Appeal No. 398 of 2011, Second Appeal No. 399 of 2011 and Second Appeal No. 400 of 2011 (Assessment year 2009-2010).
Since the basic facts, relevant for decision, in all these trade tax revisions, are more or less identical, and legal issues involved are also same, all the trade tax revisions have been clubbed and are being decided by this common judgement. Commercial/Trade Tax Revision No. 710 of 2011 is being treated as the leading case.
The Tribunal, under the impugned order, has recorded a finding that tax has been levied upon the assessee having regard to the law laid down by the Hon'ble Supreme Court of India in the case of K. Raheja Development Corporation vs. State Bank of Karnataka reported in (2005) N.T.N. (27) 243. The Tribunal after taking note of the contention raised on behalf of the assessee and having regard to other judgements applicable on the subject has proceeded to hold that in the facts of the present case, the assessee is entitled to stay of 80% of the disputed amount.
Learned counsel for the assessee challenging the order of the Tribunal submits that no reasons have been recorded qua the prima facie merits of the case as well as financial hardship faced by the petitioner. Therefore, the impugned order is bad. He relies upon the judgment of this Court in the case of M/s Amrapati Zodiac Developers Pvt. Ltd. vs. Commissioner, Commercial Tax reported in 2011 UPTC 515, wherein it has been held that the practice of the Tribunal to not to record reasons/findings with regard to the prima facie case, while passing orders, is deprecated. The Single judge then proceeded to direct that the appeal may be finally decided without insisting on any deposit by the assessee. Meaning thereby that the Court indirectly proceeded to grant 100% stay of the disputed amount. Reference has also been made to the Division Bench judgement of this Court in the case of Assotech Reality Pvt. Ltd. vs. State of U.P. & others reported in 2007 UPTC 797, wherein on facts the Division Bench has recorded a finding that the assessee was constructing flats/ apartments not for and on behalf of the prospective allottees but otherwise. The Division Bench has proceeded to hold that the judgment in the case of M/s. K. Raheja Development Corporation (Supra) was distinguishable. Reference has been made to the judgement of the Supreme Court in the case of Larsen & Tourbro Limited & Another vs. State of Karnataka & Another reported in 2008 NTN (Vol. 38)-137, wherein a Division Bench of the Supreme Court has expressed doubts about the correctness or otherwise of the earlier judgement of the Supreme Court in the case of K. Raheja Development Corporation vs. State of Karnataka reported in [2005] 5 SCC 162.
Lastly, learned counsel for the assessee referred to the order of the Division Bench of this Court dated 7th September, 2011 passed in Civil Misc. Writ Petition (Tax) No. 1286 of 2011 (M/s. Gaursons Promoters Pvt. Ltd. vs. State of U.P. & others). This Division Bench cannot be said to have laid down any binding precedent, while proceeding to grant the interim stay.
From judgements as aforesaid, it is apparently clear that as on date, the law laid down by the Supreme Court of India in the case of M/s. K. Raheja Development Corporation (Supra) still holds the fields. Mere expression of doubts by another Division Bench of the Supreme Court of Indian will not mean that the judgement stands diluted or loses its binding precedent. The Judgement in the case of M/s. K. Raheja Development Corporation (Supra) will continue to hold the fields so long as it is not held to be bad by the Larger Bench of the Supreme Court of India.
This Court has no hesitation to hold that so far as prima facie case is concerned, it cannot be said that the assessee has a very strong case.
The plea of the assessee that his case is pari materia to the facts, in the case of Assotech Reality Pvt. Ltd.(Supra), is still to be examined by the first appellate authority.
So far as the interim order passed by the Division Bench of this Court dated 7th September, 2011 passed in Civil Misc. Writ Petition (Tax) No. 1286 of 2011 (M/s. Gaursons Promoters Pvt. Ltd. vs. State of U.P. & others) is concerned, this Court may record that it does not law down any binding precedent.
In the matter of grant of interim orders in pending appeals before the Tax Appellate Authority, it has to determine two factors, (a) prima facie case, and (b) undue financial hardship, which the assessee may face.
So far as the issue of prima facie case is concerned, this Court finds that the Tribunal is legally justified in recording a finding that liability to tax has been determined with reference to the judgement of the Hon'ble Supreme Court of India in the case of M/s. K. Raheja Development Corporation (Supra), which, as already noticed above, still holds the fields.
On the issue of financial hardship which may be faced by the assessee, suffice is to record that the assessee had only filed his bank statement, for the purpose. For the reasons best known to him, he did not bring on record the balance sheet of the company, which could have reflected upon the financial health of the assessee.
On both the grounds, this Court finds no case for exercise of its revisional jurisdiction. There is hardly any scope for this Court to interfere with the order impugned.
However, in the facts and circumstances of the case, as brought on record, specifically in view of the reference made by the Apex Court in the case of Larsen & Tourbro Limited (supra) qua legality or otherwise of the judgement of the Apex Court in the case of M/s. K. Raheja Development Corporation (Supra), this Court provides that 20% of the disputed amount, which the petitioner is now required to deposit, be deposited in following manner:
Half of the amount may be deposited in cash and for the remaining half he may furnish security other than cash or bank guarantee. Let this be done within two weeks from today. In case of default petitioner shall not be entitled to the benefits of this order. The order of the Tribunal is modified to that extent only.
All the revisions are disposed of accordingly.
(Arun Tandon, J.) Order Date :- 19.9.2011 Sushil/-
Case :- SALES/TRADE TAX REVISION No. - 710 of 2011 Petitioner :- M/S Techman Buildwell Pvt. Ltd.
Respondent :- Commissioner Of Commercial Tax Petitioner Counsel :- Nishant Mishra Respondent Counsel :- C.S.C.
Hon'ble Arun Tandon,J.
Disposed of.
For order see order of date passed on the separate sheets.
(Arun Tandon, J.) Order Date :- 19.9.2011 Sushil/-