Daenyx International P Ltd. vs The Commissioner Of Commercial ...
2022 Latest Caselaw 13986 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 21.9.2022
 
Delivered on 30.9.2022
 
Court No. - 10
 

 
Case :- SALES/TRADE TAX REVISION No. - 332 of 2010
 

 
Revisionist :- Daenyx International P Ltd.
 
Opposite Party :- The Commissioner of Commercial Taxes U.P. Lucknow
 
Counsel for Revisionist :- Bharat Ji Agarwal,Suyash Agarwal
 
Counsel for Opposite Party :- C.S.C.
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. This is a revision under Section 58 of the U.P. Value Added Tax Act, 2008 (hereinafter called as "Act of 2008"). Through the aforesaid revision the Assessee had raised two questions of law, which were admitted on 19.5.2010, which are as under :

(i) Whether in view of the observation/finding of the Tribunal contained in its order dated 20.8.2003 that colour television and black & white television are not the same goods which finding has not been set aside by any higher forum, the divisional level committee is justified in taking a different view and rejecting the exemption application?

(ii) Whether the Tribunal is justified in remanding the matter for the third time instead of issuing appropriate direction or granting exemption under Section 4-A of the Act in view of its earlier finding which is said to have attained finality?

2. The case in nutshell is that the Assessee is a private limited company incorporated under the provisions of Indian Companies Act, 1956 (hereinafter referred to as the "Act of 1956") having its registered office at Gautam Budh Nagar. It established a new unit for manufacturing of coloured Television Receiver, commonly known as Coloured Television. The revisionist applied for grant of Eligibility Certificate under Section 4-A of the Act, which was granted on 02.6.1999 exempting from payment of tax from 05.05.1998 to 04.5.2006. The Eligibility Certificate reflect that revisionist had invested Rs.13,84,992/- for setting up new unit. According to the revisionist, it undertook diversification and invested an amount of Rs.15,76,400/- for manufacture of Black & White Television. It applied for grant of exemption under Section 4A of the Act on 06.06.2001 for manufacturing of Black & White Television, Chassis, Kits assembly and computer monitors.

3. The Divisional Level Committee on 18.11.2002 rejected the application for grant of exemption for diversification on the ground that earlier the coloured Television was manufactured by the revisionist and under diversification the goods manufactured is Black & White Television, which are one and the same thing and thus the revisionist is not entitled for exemption. Against the said order, an appeal No.26 of 2003 was preferred before the Tribunal. On 20.8.2003, the Tribunal allowed the appeal partially and remanded back the matter to the Divisional Level Committee to decide the issue. The Divisional Level Committee on 23.3.2005 rejected the claim for diversification on the basis of Circular dated 06.08.2001. Against the said order, again the revisionist filed appeal No.40 of 2005 before the Tribunal and vide order dated 11.07.2006, the appeal was partly allowed and the matter was again remanded back to the Divisional Level Committee with a direction to comply the earlier order of the Tribunal dated 20.8.2003. The Divisional Level Committee on 06.08.2009 once again rejected the application for grant of exemption under the diversification for manufacture of Black & White Television. The order passed by Divisional Level Committee was put to challenge through Appeal No.36 of 2009 before the Tribunal and again the Tribunal on 13.11.2009 having allowed the appeal of the Assessee-revisionist remanded back the matter to the Divisional Level Committee for taking decision afresh. Hence the present revision.

4. Sri Suyash Agarwal, learned counsel appearing for the revisionist submitted that the matter was thrice remanded to the Divisional Level Committee, which was required to adjudicate the matter considering the observation made in the order of the Tribunal dated 20.8.2003, which the Divisional Level Committee failed to do so. He further contended that the Tribunal was not justified in remanding the matter back again and should have adjudicate the matter itself. He has relied upon the decision rendered by Apex Court in Nain Singh vs. Koonwarjee and Ors. (1970) 1 SCC 732 and a decision of coordinate Bench of this Court in Ameer Chand Singh vs. Commissioner of Sales Tax 1984 UPTC 1122.

5. Sri A.C.Tripathi, learned Standing Counsel submitted that this Court on 21.7.2022 had granted time to both the Assessee counsel as well as to the learned Standing Counsel to seek instructions in the matter as to whether in absence of any stay of the proceedings in remand, whether any fresh order has been passed complying the order of the Tribunal. He submits that according to his instructions, which he has placed before the Court and taken on record, the Divisional Level Committee on 31.3.2010 post remand had taken a decision on the exemption application of the Assessee-Company.

6. Sri Tripathi further contends that the said fact regarding the decision taken by the Divisional Level Committee on 31.3.2010 has not been disclosed in the present revision nor the order was put to challenge by the Assessee before the Appellate Forum. He then contended that the interim order was passed by this Court on 19.5.2010 i.e. after the decision of the Divisional Level Committee, as such, the present revision proceedings are not maintainable before this Court.

7. I have heard the respective counsels and perused the material on record.

8. It is an admitted fact to both the parties that post remand by the Tribunal on 13.11.2009, the Divisional Level Committee had proceeded to examine the application for grant of exemption under Section 4A for the diversification of the Assessee-Company and the same was rejected on 31.3.2010. Neither the said fact ever brought into the knowledge of the Court nor any disclosure was made by the Assessee-Company. The revision was filed on 26.04.2010 i.e. after the decision having been taken by the Divisional Level Committee on the application for grant of exemption for diversification for manufacturing Black & White and Coloured Television of the revisionist-Company.

9. The only academic question, which remains to be decided is, the effect of the remand order and the authorities acting upon such remand, and taking decision afresh, whether proceedings launched subsequently is maintainable at the behest of the party who had approached the Appellate Forum challenging the order of the Authority, which has been set aside and remanded back for decision afresh.

10. The word "remand" and "remit" are synonymous and are used by Courts and quasi judicial authority while exercising power of appeal, when the order of subordinate Court or authority is under challenge.

11. P Ramanatha Aiyar's Advanced Law Lexicon, 6th Edition, defines the word "remand", which means, an order by a appellate Court sending the proceedings back to the original Court with directions to dispose of them in the manner indicated in the order.

12. Similarly, words "Remit a cause" means, to remit a cause is to send it back to the same Court from which it has been removed by appeal or otherwise, for the purpose of retrying the cause when judgment has been reversed, or of issuing execution when it has been affirmed.

13. Wharton's Law Lexicon defines the term "remand", which means to return from one Court to another especially lower Court or from a Court to an administrative agency, McCarton v. Estate of Watson, 693 2d 192 (1984).

14. The Black's Law Dictionary, 7th Edition, defines remand, which means the act or insistence of sending something (such as case, claim, or person) back for further action.

15. The concept of remand finds place in Order 41, Rule 23 of the Code of Civil Procedure, which deals with ''appeals from original decrees'. Under Rule 23 of Order 41, where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case and may further direct what issue or issues shall be tried in the case so remanded.

16. Further Rule 23-A, which was inserted by Act 104 of 1976 w.e.f. 01.2.1977, deals with remand in other cases, where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have same powers as it has under Rule 23.

17. Thus from the reading of both Rules 23 and 23-A of Order 41 C.P.C., it is clear that the Appellate Court not only has the power of remanding the matter while disposing of a suit, on preliminary issue, where the decree is reversed in appeal and Appellate Court considers that retrial is necessary, it remand the same.

18. Thus, the concept of remand or remitting a cause has been borrowed by various judicial authority/quasi judicial authority/ Tribunals, from the Code of Civil Procedure which defines the term "remand". Moreover, from the reading of definition of both 'remand' and 'remit' it is clear that it is the hierarchy of the Court which while reversing a finding recorded by a Court or an authority, transmit back the matter to the Authority or the Court for reconsideration of the same afresh or on the point so framed by it.

19. The power of remand of Appellate Authority cannot be curtailed or questioned simplicitor unless and until some grave error is pointed out so as to attract the interference of a superior Court.

20. In the present case, the Assessee-Company had invoked the revisional jurisdiction of this Court under Section 58 of the Act of 2008. The power of revisional Court is limited only to the extent so as to see whether the Court below has exercised its jurisdiction vested in it legally and correctly, or has exercised its jurisdiction not vested in it or has failed to exercise its jurisdiction vested in the Court below.

21. The scope of consideration under revisional jurisdiction is very limited and narrow. A remand order cannot be tested in a revisional jurisdiction especially when the appellate forum, while remanding the case, had dealt with all the issues raised before it and had only required the authority to comply its order and record its finding.

22. In the instant case, it was prior to filing of the revision that the order of remand was acted upon by the Divisional Level Committee on 31.03.2010 and the revision was filed on 26.4.2010 and was taken up for hearing on 19.5.2010. There is no challenge to the order passed by Divisional Level Committee, which stands till today.

23. The counsel for the Assessee could not point out as to why the order passed by Divisional Level Committee post remand was never challenged nor disclosed before this Court through the present revision nor subsequently.

24. Reliance placed by the Assessee counsel on the decision in case of Nain Singh (supra) is of no help to him and is in fact against the Assessee. As far as decision of Ameer Chand Singh (supra) is concerned, there the challenge was as to the jurisdiction of the Assistant Commissioner, who had passed the order for remand and this Court had directed the Tribunal to record its finding on the point of jurisdiction of the Assessing Authority. Thus, the case relied upon is also not of any help to the Assessee.

25. In the present case, once the matter was remitted to the Divisional Level Committee by the Tribunal, the Assessee having failed to challenge the order prior to the passing of the order of remand and there being no stay in the revision filed subsequent to the passing of the order by the Divisional Level Committee, I find that once the Divisional Level Committee has acted upon the order of remand of the Tribunal and taken a decision on 31.3.2010, the only remedy left to the Assessee was to challenge the order, which he failed nor he disclosed the same in the revision filed before this Court.

26. Now coming to the two questions of law framed in the revision, as both of them are inter related, I find that in depth analysis has been done on the concept of remand in the preceding paragraphs and further the Assessee having failed to disclose the fact that prior to filing of the revision, the order of remand was acted upon, and the Divisional Level Committee having considered the application for grant of exemption under Section 4A on 31.3.2010, the revision lacks merits and is not maintainable. Thus, the questions as framed, stand answered i.e. against the Assessee and in favour of revenue.

27. As the finding, which has been recorded by the Divisional Level Committee stands against the Assessee, having not been challenged before any Forum, the revision being misconceived is hereby dismissed.

Order Date :- 30.9.2022

Kushal