RASHTRIYA AUDYOGIK SANSTIIANversusCOMMISSIONER OF TRADE TAX, U.P.

                  RASHTRIYA AUDYOGIK SANSTIIAN                                   A
                                      v.
                 COMMISSIONER OF TRADE TAX, U.P.

                             MARCH 22, 2007

     [DR. ARIJIT PASA YAT AND LOKESHWAR SINGH PANTA, JJ.]                          B


     Uttar Pradesh Trade Tax Act, 1948:

     S. 11-Revisional Jurisdiction- under-Exercise of-Scope-Held, can
be exercised only if question of law has arisen.                                   C
      The assessee-appellant successfully challenged the demand raised by
Assessing Authority under the Uttar Pradesh Trade Tax Act, 1948, before
the Tribunal. Revenue filed revision applications under s.11 of the Act before .
the High Court, which was allowed.
                                                                                   D
      In appeal to this Court, assessee contended that without formulating any
question of la~, the exercise of jurisdiction under s. l l of the Act was
impermissible.

      Respondent contended that though the questions have not been
specifically indicated, the basic issues for determination were taken note of      E
and the impunged orders were passed.

      Disposing of the appeal, the Court

      HELD: The impunged order of High Court is set aside and matter is
remitted to High Court so that question of law, if any, which arises in the        F
facts of the case can be formulated. Only if question of law arises, then only
the revisional jurisdiction can be exercised. [Para 9) (377-G)

     Commissioner of Sales Tax, U.P. v. Kumaon Tractors & Motors, (2002)
9 SCC 379; Commissioner, Sales Tax, U.P. v. Mis Mohan Brickjield, Agra,
{2006) 2 SCALE 17, relied on.
                                                                                 G
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1538 of2007.

      From the Final Judgment and Order dated 20.05.2005 of the High Court
of Judicature at Allahabad in Trade Tax Revision Nos. 1234 & 1304 of 1997.

                                    373                                          H
    374                    SUPREME COURT REPORTS                     [2007] 4 S.C.R.

A         Manoj Goel, Shuvodeep Roy, W. Shafiq, Gopal Venna and Brij Bhushan
    for the Appellant.

          Vimla Sinha and Kamlendra Mishra for the Respondent.

          The Judgment of the Court was delivered by
B         DR. ARIJIT PASA YAT, J. l. Le.:ive granted.

           2. Challenge in these appeals is to the order passed by a learned Single
    Judge of the Allahabad High Court disposing of several revision petitions
    filed by the respondent-Commissioner of Trade Tax, Uttar Pradesh, under the
C   Uttar Pradesh Trade Tax Act, 1948 (in short 'Act').

          3. The factual position which is almost undisputed is as under:

            Two petitions for revision under Section 11 ·of the Act were filed before
    the High Court questioning correctness of the common order dated 28th May,
    1997, passed by the Trade Tax Tribunal, Agra (in short the 'Tribunal'). The
D   disputes related to the assessments for assessment year 1987-88 under the
    Act and the Central Sales Tax Act, 1956 (in short the 'Central Act'). Demands
    were raised by orders of the assessment dated 17.9.1993. The demands were
    challenged before the Assistant Commissioner (Judicial) II, Trade Tax, Agra
    who remitted the matter to the Tax Assessing Officer for fresh assessment.
E   Appellant (hereinafter described as 'assessee') filed appeals before the
    Tribunal. The appeals were allowed and the first appellate orders dated
    22. 7 .1996 were set aside. As noted above, Revenue filed two revision
    applications under Section 11 of the Act before the High Court. By the
    impugned order dated 20.5.2005, the revisions were allowed and the orders of
    the Tribunal were set aside and that of the first Appellate Authority restored.
F
          4. Though many points were urged in support of the appeals it was
    primarily conte;ided that without fonnufating any question oflaw, the exercise
    of jurisdiction under Section 11 of the Act was impermissible.

          5. The learned counsel for the respondent on the other hand supported
G   the order of the High Court saying that though the questions have not been
    specifically indicated the basic i3sues for detennination were taken note of
    and the impugned orders were passed.

          6. We shall first deal with the power of the High Court in dealing with
    the revision petition. Section 11 of the Act reads as follows:
H           "11. Revision by High Court in special cases -{ 1) Any person
RASHTRIYA AUDYOGIK SANSTHAN v. COMMR. OFTRADE TAX, U.P. [PASAYA T, J.] 375


   aggrieved by an order made under sub-section (4) or sub-section (5) A
   of Section l 0, other than an order under sub-section (2) of that
   section summarily disposing of the appeal, or by an order passed
   under Section 22 by the Tribunal, may, within ninety days from the
   date of service of such order, apply to the High Court for revision of
   such order on the ground that the case involves any question of Jaw. B

    (2) Any person aggrieved by an order made by the Revising Authority
    or an Additional Revising Authority refusing to· state the case under
    this section, as it stood immediately before April 27, 1978, hereinafter
    referred to as the said date, may, where the limitation for making an
    application to the High Court under sub-section (4), as it stood           C
    immediately before the said date, has not expired, likewise apply for
  . revision to the High Court within a period of ninety days from the said
    date.

   (3) Where an application under sub-section (l) or sub-section (3), as
   they ·stood immediately before the said date, was rejected by the           D
   Revising Authority or an Additional Revising Authority on the sole
   ground that the period of one hundred and twenty days for making
   the reference, as specified in the said sub-section (l ), has expired,
   such applicant may apply for revision of the order made under sub-
   section (2) of Section 10, to the High Court within sixty days from the     E
   said date on the ground that the case involves any question of law.

   (4) The application for revision under sub-section (1) shall precisely
   state the question of Jaw involved in the case, and it shall be competent
   for the High Court to fonnulate the question of law or to allow any
   other question of law to be raised.
                                                                               F
   (5) Every application for making a reference to the High Court under
   sub-section (l) or sub-section (3), as they stood immediately before
   the said date, pending before the Revising Authority or an Additional
   Revising Authority on the said date, shall stand transferred to the
   High Court. Every such appliCation upon being so transferred and            G
   every application under sub-section (4) as it stood immediately before
   the said date, pending before the High Court on the said date, shall
   be deemed to be an application for revision under this section and
   disposed of accordingly.

   (6) Where the High Court has before the said date, required the             H
    376                 SUPREME COURT REPORTS                    (2007) 4 S.C.R.

A         Revising Authority or an Additional Revising Authority to state the
          case and refer it to the High Court under sub-section (4), as it stood
          immediately before the said date, such authority shall, as soon as may
          be, make reference accordingly. Every reference so made, and every
          reference made by such authority before the said date in compliance
          with the requirement of the High Court under sub-section (4), as it
B         stood before the said date, shall be deemed to be an application for
          revision under this section and disposed of accordingly.

          (6-A) Where the Revising Authority or an Additional Revising
          Authority has, before the said date, allowed an application under sub-
          section (I) or sub-section (3), as they stood immediately before the
c         said date, and such authority has not made reference before the said
          date, it shall, as soon as may be, make reference, to the High Court.
          Every such reference, and every reference already ·made by such
          authority before the said date and pending before the High Court on
          the said date, shall be deemed to be an application for revision under
D         this section and disposed of accordingly.

          (7) Where an application under this section is pending, the High Court
          may, on an application in that behalf, stay recovery of any disputed
          amount of tax, fee or penalty payable, or refund of any amount due,
          under the order sought to be revised :
E
             Provided that no order for the stay of recovery of such disputed
          amount shall remain in force for more than thirty days unless the
          applicant furnishes adequate security to the satisfaction of the
          Assessing Authority concerned.

F         (8) The High Court shall, after hearing the parties to the revision,
          decide the question of law involved therein, and where as a result of
          such decision, the amount of tax, fee or penalty is required to be
          determined afresh, the High Court may send a copy of the decision
          to the Tribunal for fresh determination of the amount, and the Tribunal
          shall thereupon pass such orders as are necessary to dispose of the
G         case in conformity with the said decision.

          (8-A) All applications for revision or orders passed under Section 10
          in appeals arising out of the same cause of action in respect of the
          same assessment year shall be heard and decided together.

H             Provided that where any one or more of such applications have
        RASHTRIYAAUDYOGIKSANSTHAN v. COMMR. OF TRADE TAX, U.P. [PASAYAT,J.) 377

           been heard and decided earlier, if the High Court, while hearing the        A
           remaining applications, considers that the earlier decision may be a
           legal impediment in giving relief in such remaining application, it may
           recall such earlier decisions and may thereafter proceed to hear and
           decide all the applications together.

           (9) The provisions of Section 5 of the Limitation Act, 1963, shall,         B
           mutatis mutandis, apply to every application, for revision under this
           section.

           Explanation For the purpose of this section, the expression "any
           person" includes the Commissioner and the State Government."

          7. The parameters for exercising power under the said provision were
                                                                                       c
    considered by this Court in Commissioner of Sales Tax, U.P. v. Kumaon
    Tractors & Motors, [2002] 9 SCC 379. It was inter alia noted as follows:

           "8. x x x x        x
                                                                                       D
           It appears that the High Court ignored the provisions of Section 11
)          of the Trade Tax Act which confers limited jurisdiction to interfere
           with the order of the Tribunal only on the question of law, that too
           the said question of law is required to be precisely stated and
           fonnulated. Instead of deciding the question of law, the High Court
           simpliciter re-appreciated the evidence and ignored the material            E
           documents maintained and produced by the assessee, that is, books
           of accounts, bills and Form 'C' submitted by it. In this view of the
           matter, the impugned' order cannot be sustained."

          8. The aforesaid aspects were also noted by this Court in Commissioner,
    Sales Tax, U.P. v. Mis Mohan Brickfield, Agra, (2006) 2 SCALE 17.                  F
          9. Accordingly, we set aside the impugned order of the High Court and
    remit the matter to the High Court so that question of law, if any, which arises
    in the facts of the case can be fonnulated. We make it clear that we have
    not expressed any opinion as to whether any question of law arises or not.         G
    Only if question of law arises, then only the revisional jurisdiction can be
    exercised.

         10. The appeals are accordingly disposed of. There will be no order as
    to costs.
                                                                      .
                                                             Appeals disposed of.
                                                                                       H
    D.G.