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TMI Blog2019 (8) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... which they have allowed the appeal filed by the assessee thereby setting aside the order of the first appellate authority, and also setting aside the orders passed under section 22 of the Trade Tax Act dated 5th November, 2009. 4. Brief facts giving rise to this revision are that at the time of final assessment proceeding of the assessment year 2006 - 07, the Tax on the sale of ACR Conductor against Form 3 - Kha was determined at the rate of 2.5%. The total sale turn over of ACR conductor as shown by the dealer was Rs.5,54,96,494.54 in the assessment year 2006-07. 5. After final assessment of the assessee the records were examined and during the examination of the records it was found that out of total 22 Form-Kha, 9 Form-Kha were relating to sale of ACR conductor. It has also revealed that certain forms were issued against the sale of ACR conductor to the sugar and spinning mills. 6. As per notification No. KA-NI-2-731/XI-9(37) U.P. Act- 15- 48-order(14)-2005 dated 07.03.2005, the Tax on the sale of goods to the units manufacturing the non-leviable goods, the Tax on ACR Conductor against Form-3Kha is 4% and as such, the assessment order passed under Rule 41(8) attracted the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent/ firm were registered as Second Appeal No. 123 of 2011 (assessment year 2006-07), and Second Appeal No.120 of 2011(assessment year 2005-06). 12. Both the appeals of the respondent were heard and decided by the learned Commercial Tax Tribunal, Lucknow vide judgment and order dated 11 August 2011 whereby the learned Tribunal has allowed both the appeals of the respondent and set aside the first appellate orders as well as the orders passed under Section 22. 13. According to the Tribunal the liability of Tax on the sold goods were liable to be levied at the rate of 4%, which were in fact, levied at the rate of 2.5% but the said mistake was not on the part of the respondent/firm but the same had occurred due to lapse on the part of purchasing dealer who had supplied Form-Kha to the opposite party. In support of its observation Commercial Tax Tribunal placed reliance on the judgment rendered in the case of Commissioner, Sales Tax Vs. Rana Steel Saharanpur, 2003 U.P.T.C. Page 532 wherein the Hon'ble High Court held that for any wrong committed by the purchasing dealer, selling dealer cannot be held responsible and necessary action can be taken only against the purchasing dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the aforesaid goods i.e. ACR Conductors against Form 3-B at the rate 4%. 19. The assessing authority in the aforesaid circumstances issued notice to the respondent firm and after hearing the respondent passed order dated 5 November 2009 under Section 22 of the Trade Tax Act imposing the Tax on the sale turn over of ACR conductors for the assessment year 2006-07 at the rate of 4% after recording that there was error apparent on the face of record relating to the assessment of Tax. 20. It is relevant to mention at this stage that the Tribunal in its impugned judgment has admitted that liability of Tax on the goods sold was 4% but was levied at the rate of 2.5%. The ground on which action of the assessing authority has been found to be infirm is that the mistake was not on the part of the respondent firm but occurred due to lapse on the part of purchasing dealer and relying on the judgment of Commercial Sales Tax Tribunal Vs. Rama Steels Saharanpur, 2003 UPTC 532, held that if any wrong is committed by the purchasing dealer the selling dealer cannot be held responsible and necessary action can be taken against the purchasing dealer under section 3-B of the Act. 21. The jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax as mentioned in the form has been duly deposited by the seller and subsequently in exercise of power under section 22 of the Trade Tax Act, rate of Tax has been levied at 4% and difference is being sought to be recovered from the seller. 25. The respondent/assessee has vehemently urged that the seller is no where responsible for negligence in recovering Trade Tax at the rate 2.5% in as much as he had recovered the Tax at the rate 2.5% as mentioned in the form handed over to him by the purchaser which was published by the Sales Tax Authorities as per provisions of Sales Tax Act. 26. It has further been submitted that in the case of Gaurav Trader Vs. Commissioner of Trade Tax, U.P., Lucknow, (1996) 9NTN 262, this Court observed as follows:- "I have already mentioned the relevant provisions in the Act and the Rules which made it clear, as emphasized by the honourable Supreme Court as well as in my judgment in Bharat Iron Stores 1994 UPTC 130 that the selling dealer is expected to act only as a careful businessman and the Act does not place on the selling dealer the burden of making all sorts of verification. If there is nothing in form III-A raising a doubt about its genuinen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mistake, however, does not cover cases where a revision or review of the order is intended. "Mistake" means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. "Apparent" means visible; capable of being seen, obvious; plain. It means "open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming." A mistake which can be rectified under Section 22 is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration." 30. This Court has also perused the assessment order which has been handed over by the learned counsel for the revisionist, from which it is clear that the Assessing Authority has not discussed or considered at that stage - as to whether the rate of Tax leviable would be 2.5% or 4%. Further it is also an admitted position that as per the Notification No. KA-NI-2-731/XI-9(37) U.P. Act- 15-48-order(14)- 2005 dated 07.03.2005 the rate of Tax leviable in the present case would be 4%. The question to be considered in order to resolve the controversy at hand, would be as to whether the transaction was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49, the Apex Court in paragraph No.17 has held in the following manner : "17. It is trite that the letter of law has to be accorded utmost respect and strictly adhered to especially while interpreting a taxing statute. There ought not exist any scope for impregnating the interpretation by reading equity into taxing statutes. The classic statement of Rowlatt, J, in Cape Brandy Syndicate v. IRC [(1921) 1 K.B. 64, 71] still holds the field. It reads as under: In a Taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." 37. In this regard it is relevant to place reliance on the recent judgment of the Hon'ble Supreme Court in the case of Prashanti Medical Services & Research Foundation Vs. Union of India and Ors, Civil Appeal No. 5849 of 2019 (decided on 25.07.2019), wherein in paragraph No.29 the Court has been held as follows: "29. ... We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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