2010 (8) TMI 850 - HC - VAT and Sales Tax

Whether in the facts and circumstances of the case the order of the Tribunal is sustainable in law that D.E.T.C. (I) was competent to take action in the matter despite the pendency of the appeal before the Tribunal? Whether in the light of ratio of law laid down by the honour able Supreme Court in Tel Utpadak Kendra v. Deputy Commissioner of Sales Tax 1981 (7) TMI 80 - SUPREME COURT OF INDIA where the decision relied upon by the Tribunal in Santoshi Tel Utpadak Kendra v. Deputy Commissioner 1978 (7) TMI 233 - BOMBAY HIGH COURT stands reversed the decision of the Tribunal dated January 16 1997 is liable to be set aside? Whether in view of the retrospective effect of section 15A Explanation by Act 7 of 1996 which has been made applicable to A.Y. 1983-84 also the levy of tax on consumable store etc. is sustainable in law? Whether in the facts and circumstances of the case the ex parte decision of the Tribunal is legal and void? Held that - Appeal against assessment could result in assessment order being examined on the merits and even higher demand being raised which could not have been done in an application for revision filed by the assessee. This being the position the judgment of the honourable Supreme Court is distin guishable. Question No.1 is accordingly answered against the assessee and in favour of the Revenue. We accordingly answer the question Non 2 in favour of the assessee and against the Revenue and hold that the revision by officer of the same rank was not permissible. The learned counsel for the assessee states that in view of decision of question (2) questions (3) and (4) do not survive. We accordingly leave the said questions unanswered.

Summary

Issues involved:
1. Competency of revisional authority during pendency of appeal
2. Validity of revisional order by an officer of the same rank
3. Levy of tax on consumable store and retrospective effect of section 15A
4. Legality of ex parte decision by the Tribunal

Analysis:

Competency of revisional authority during pendency of appeal:
The issue revolved around whether the revisional authority could make a decision while an appeal was pending before the Tribunal. The court clarified that the pending matter was an application for revision, not an appeal against assessment. The court distinguished the situation from the precedent cited and ruled against the assessee, stating that the judgment cited did not apply to the current case. The court highlighted the difference between an appeal against assessment and an application for revision, emphasizing that the assessment order could be examined on merits in an appeal, leading to a higher demand, which could not be done through a revision application. Therefore, the court answered this question against the assessee.

Validity of revisional order by an officer of the same rank:
The question raised the issue of whether an officer of the same rank could exercise revisional powers. The counsel for the assessee argued against this, citing a judgment and instructions issued by the State of Haryana. The court acknowledged the precedence cited and accepted that revision by an officer of the same rank was impermissible. By referring to specific tribunal orders, the court ruled in favor of the assessee, stating that revision by an officer of the same rank was not allowed.

Levy of tax on consumable store and retrospective effect of section 15A:
Due to the decision on the second question, the court did not delve into the issues regarding the levy of tax on consumable store and the retrospective effect of section 15A. These questions were left unanswered as they were deemed irrelevant after the ruling on the validity of revisional orders by an officer of the same rank.

Legality of ex parte decision by the Tribunal:
The issue of the legality of the ex parte decision by the Tribunal was not directly addressed in detail, as the focus of the judgment primarily centered around the competency of the revisional authority and the validity of revisional orders by an officer of the same rank. The court disposed of the reference accordingly, leaving the questions related to the ex parte decision unanswered due to the resolution of the preceding issues.