State Of Himachal Pradesh And ... vs M/S Nokia India Sales Pvt. Ltd
2023 Latest Caselaw 10389 HP

                                              1




    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                          Civil Revision No. 10 of 2023.




                                                                         .
                                          Date of Decision : 27th July, 2023





    State of Himachal Pradesh and others                         ...... Petitioners.





                                  Versus

    M/s Nokia India Sales Pvt. Ltd.                              ......Respondent.





    Coram:

    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge

    The Hon'ble Mr. Justice Satyen Vaidya, Judge

    Whether approved for reporting?1 No

    For the Petitioners      :    Mr. I.N. Mehta, Senior Additional Advocate
                                  General with Mr. Ramakant Sharma, Ms.


                                  Sharmila   Patial, Additional Advocates
                                  General, Mr. J.S. Guleria, Ms. Priyanka
                                  Chauhan, Deputy Advocates General, Mr.
                                  Rajat Chauhan, Law Officer and Mr. Rakesh




                                  Sharma, Advocate.





    For the Respondent :          Mr. Krishna Rao and Mr. Jyotirmay Bhatt,
                                  Advocates.





    Tarlok Singh Chauhan, Judge (oral)

Heard. By way of instant revision petition filed under

Section 48(1) of the Himachal Pradesh Value Added Tax Act, 2005

(for short 'HP VAT Act'), petitioners seek to assail order dated

14.06.2017, passed in Appeal No.10 of 2016 and order dated

Whether reporters of Local Papers may be allowed to see the judgment?

28.5.2022, passed in Rectification Application No.3/2018 by the

Himachal Pradesh Tax Tribunal, Dharamshala (Camp at Shimla) (for

.

short 'the Tribunal').

2. The brief facts of the case are that the

respondent/dealer M/s Nokia India Sales Pvt. Ltd. is registered

under the H.P. VAT Act, 2005, vide Tin No.02020500871 with the

Excise and Taxation Department and is engaged in the sale of

mobile/cell Phones, electronic and electrical goods. The Deputy

Excise and Taxation Commissioner, Flying Squad South Zone,

Parwanoo-cum-Assessing Authority passed composite order dated

16.04.2015, for the period 01.01.2013 to 30.11.2014, whereby

demand of Rs. 52.15 lacs was created against the dealer on account

of differential amount of tax under the H.P. VAT Act, 2005.

3. Petitioner No.3, i.e., the Deputy Excise and Taxation

Commissioner-cum-Assessing Authority, FS Parwanoo vide its order

dated 13.05.2015, placing reliance on the judgment passed by the

Hon'ble Supreme Court of India in C.A. Nos 11486-11487/2014,

titled as State of Punjab Vs Nokia India Pvt. Ltd. AIR 2015 SC

1068 held that the mobile/cell phone charger is an accessory to cell

phone and is not a part of the cell phone thus, liable to VAT at

general rate 12.5%. Further, the DETC-cum-Assessing Authority

held that since the respondent/dealer was selling charger separately,

therefore, it was required to pay separate VAT rate @13.75% on the

chargers. The respondent/dealer had paid VAT on the chargers

.

@5% during the above assessment years and hence the DETC had

directed it to pay the balance amount of Tax @8.75% alongwith the

interest vide its order dated 16.04.2015.

4. The respondent/dealer had resisted the imposition of

VAT @13.75% on the ground that the charger was part of the mobile

phone and the same when sold alongwith the mobile phone could

only be charged @5% which was the rate of VAT being charged on

the mobile phone sets. However, vide assessment order dated

16.04.2015 passed under Section 60 of the H.P. VAT Act, 2005,

petitioner No. 3, i.e., DETC confirmed differential VAT liability

amounting to Rs. 52.15 lacs on the sale of cell phone chargers

separately, sold alongwith cell phones in retail packs during the

period 01.01.2013 to 30.11.2014.

5. The respondent/dealer thereafter challenged the above

order before the Excise and Taxation Commissioner-cum-Appellate

Authority who vide its order dated 16.12.2015 (Annexure P-4)

dismissed the appeal and upheld the order of petitioner No. 3, i.e.,

DETC, Flying Squad, Parwanoo.

6. The respondent/dealer thereafter filed the second

appeal before the H.P. Tax Tribunal against the order of Excise and

Taxation Commissioner and the learned Tribunal vide order dated

14.06.2017 (Annexure P-1) allowed the appeal and quashed and set

.

aside the order of DETC, FS, Parwanoo dated 16.04.2015 and order

of first Appellate Authority dated 16.12.2015.

7. The petitioners thereafter preferred the Rectification

Application under Section 47(1) of the HP VAT Act, 2005 before the

HP Tax Tribunal for rectification of order dated 14.06.2017 passed in

appeal No.10/16 by the HP Tax Tribunal. However, the HP Tax

Tribunal vide order dated 28.05.2022 (Annexure P-2) dismissed the

Rectification Application of the Department and observed that there

is no mistake or error apparent in the order sought to be rectified.

8. Petitioners have now sought to invoke revisional

jurisdiction of this Court under Section 48(1) of the VAT Act, 2005 by

assailing the order dated 14.06.2017, passed by the Tax Tribunal in

Rectification Application of the petitioners, as also the principal order

dated 28.5.2022 passed by the same Tribunal in exercise of powers

under Section 45 (2) of the VAT Act.

9. Section 48 (1) of the VAT Act reads as under:-

"48. Revision to High Court (1) Any person aggrieved by an order made by the tribunal under sub-section (2) of section 45 or under sub-section (3) of section 46, may, within 90 days of the communication of such order, apply to the High court of Himachal Pradesh for revision of such order if it involves any question of law

arising out of erroneous decision of law or failure to decide a question of law.''

10. The clear mandate of law, thus, is that this Court can

.

exercise revisional jurisdiction under Section 48 of the Act only

against the orders passed by Tax Tribunal either under Section 45(2)

or Section 46(3) of the VAT Act. Such jurisdiction can be exercised if

the person aggrieved applies to this Court within 90 days of the

communication of the order and also if the involvement of any

question of law arising out of erroneous decision of law or failure to

decide a question of law is found to exist.

11. The impugned order passed by the Tax Tribunal in

Rectification Application filed by the petitioners under Section 47 of

the VAT Act is not open to challenge by the petitioners before this

Court under Section 48 of the VAT Act. Petitioners can also not be

allowed to assail the order dated 14.06.2017, passed by the Tax

Tribunal being clearly beyond the period of limitation, as prescribed

under Section 48 of the Act.

12. In the given facts and circumstances, the order passed

by the learned Tribunal on 14.6.2017 is neither erroneous nor does

it amount to non decision of question of law. Since, no question of

law has arisen for consideration before this Court, the revision

petition fails and is dismissed accordingly.

13. Pending miscellaneous application(s), if any, shall also

stand disposed of.

.

                                            ( Tarlok Singh Chauhan )





                                                     Judge





                                               ( Satyen Vaidya)
    [                                                Judge
    27th July 2023.
        (krt)




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