Village Patlian vs Unknown
2021 Latest Caselaw 3838 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                ON THE 11th DAY OF AUGUST 2021




                                                          .

                           BEFORE
             HON'BLE MR. JUSTICE RAVI MALIMATH,
                     ACTING CHIEF JUSTICE





                             &
           HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
                 CIVIL REVISION No. 73 of 2014

         Between:-


         M/S MALWA COTTON SPINNING
         MILLS LTD.


         VILLAGE PATLIAN,
         TEHSIL PAONTA SAHIB,
         DISTRICT SIRMOUR, H.P. 173025

                                         .....PETITIONER



         (BY SH. RAKESH SHARMA, ADVOCATE)




         AND
    1.   STATE OF HIMACHAL PRADESH,





         THROUGH SECRETARY,
         EXCISE & TAXATION,
         SHIMLA-171002





    2.   COMMISSIONER,
         EXCISE & TAXATION,
         GOVERNMENT OF HIMACHAL PRADESH,
         BLOCK NO. 30, KASUMPATI, SHIMLA.
    3.   ASSESSING AUTHORITY,
         NAHAN,
         DISTRICT SIRMOUR, H.P. 173025

                                      .....RESPONDENTS

     (BY SHRI AJAY VAIDYA, SENIOR
     ADDITIONAL ADVOCATE GENERAL)
_______________________________________________________




                                         ::: Downloaded on - 31/01/2022 22:51:47 :::CIS
                                            2




                 This petition coming on for orders this day, Hon'ble Mr.

    Justice Ravi Malimath, passed the following:




                                                                    .

                              ORDER

This revision petition was admitted by the order dated

18.08.2015. However, the substantial questions of law were not

framed. We have heard learned counsels on the same. On hearing

learned counsels, we are of the view that the following substantial

question of law arises for consideration in this revision:-

"Whether the Ld. Tribunal has committed error

relying upon the majority opinion in the case of

Associated Cement Company Ltd. Vs Commercial

Tax Officer 1981 (4) SCC 578 which was already

overruled by the judgment of the Constitution Bench

in J.K. Synthetics Vs. Commercial Tax Officer

reported at (1994) 94 STC 422 (SC)."

2. We have heard learned counsels on the question of law.

3. The Tribunal relied on the judgment of the Hon'ble

Supreme Court in the case of Associated Cement Company Ltd. Vs

Commercial Tax Officer reported in 1981 (4) SCC 578 in terms of its

order dated 31.03.2014. However, it failed to follow the latest

judgment of the Constitution Bench in J.K. Synthetics Vs.

Commercial Tax Officer, reported in (1994) 4 SCC 276 [(1994) 94

STC 422 (SC)]. In para-19 of the J.K. Synthetics' case, it was held

that the majority opinion in the case of Associated Cement Company

.

Ltd. Vs Commercial Taxes Officer does not state the law correctly.

Therefore, the legal position was reiterated in the said paragraph.

This is a matter which the Tribunal ought to have considered. Even

though, the Tribunal has referred to the judgment reported in J.K.

Synthetics' case in para-7 of its order, however, it has chosen not to

follow the same. Therefore, we are of the view that the Tribunal

committed a gross error in not considering the said judgment.

4. It is suffice for us to hold that the Tribunal wrongly failed

to consider the judgment of J.K. Synthetics and on the contrary

considered the case of Associated Cement Company Ltd. Vs

Commercial Tax Officer, which judgment was overruled.

5. As a result whereof, the substantial question of law is

answered by holding that the Tribunal committed an error in wrongly

following the judgment in Associated Cement Company Ltd. Vs

Commercial Tax Officer. Resultantly, the petition is allowed. The

order of the Tribunal dated 31.03.2014 is set aside. The matter is

remitted to the Tribunal for a fresh consideration by taking into

consideration the judgment of the Hon'ble Supreme Court in J.K.

Synthetics' case supra and any other relevant judgment that arises

for consideration therein.

6. Both the parties are entitled to place additional material

in support of their respective case. The petition is accordingly

.

restored to file. In view of the long pendency of the matter, the

Tribunal is directed to dispose off the matter within a period of three

months.

                        r            to          ( Ravi Malimath )
                                                 Acting Chief Justice

                                               ( Jyotsna Rewal Dua )
                                                      Judge
    11th August, 2021   (vs/rohit)