Madhya Pradesh High Court
M/S Sardarmal Samrathmal Kothari vs Commissioner Commercial Tax ... on 4 February, 2022
Author: Vivek Rusia
1 VATA No.1/2022
IN THE HIGH COURT OF MADHYA PRADESH AT
INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
ON THE 4st OF FEBRUARY, 2022
VATA No.1/2022
Between:-
M/S SARDARMAL SAMRATHMAL KOTHARI THROUGH PROPRIETOR
MR. VIJAY KOTHARI, R/O CHIMANGANJ MANDI (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI ADITYA GOYAL, ADVOCATE )
B
AND
COMMISSIONER COMMERCIAL TAX MADHYA PRADESH
COMMISSIONER INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SHREY RAJ SAXENA, ADVOCATE )
(Heard through Video Conferencing)
This appeal coming on for orders this day, JUSTICE SHRI
JUSTICE VIVEK RUSIA passed the following:
JUDGMENT
This is an appeal filed under Section 13 of the Madhya Pradesh
Sthaniya Khhetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 read
with Section 53 of the M.P. Vat Act, 2002 against order dated
24.9.2021 by the M.P. Commercial Tax Appellate Board, Bhopal
Bench at Indore in case No.A/101/CTB/IND/17(Praveshkar).
The appellant has not proposed any substantial question of law
involve in this appeal on ground No.3.1.
After hearing the parties and on the basis of law laid down by
the Apex Court in the case of Shyam Deo Pandey Vs. State of Bihar
(1971) 1 SCC 855 and Savita Vs. State (NCT of Delhi), 2019 10
SCC 29.We find a substantial question of law involved in this case:-
"(1)whether the Appellate Board has committed error
of law while deciding the appeal without summoning
the record from the subordinate Authority".
Heard.
Although the appellant has assailed the impugned order dated
24.9.2021 on merit but learned counsel has drawn attention of this
Court to Paragragh 7 of the judgment in which the Board has held that
the Appeal is being consider on the basis of averments made in the
appeal as the records of the Assessment Authority as well as the
Appellate Authority are not available.
The Apex Court in case of Shyam Deo Pandey (supra) has
held that the record is necessary to enable the Board to adjudicate
upon the correctness of the impugned order. The Apex Court also in
the case of Savita (supra) has set aside the impugned order passed by
the High Court and remanded the matter back to the High Court for
hearing of the appeals afresh after reconstruction of the record of the
trial Court.
Therefore, the records of the subordinate
Court/Authority/Tribunal are liable to be examined while deciding the
validity of correctness of impugned order/judgment. Hence, we
answer the question of law in favour of the assesses and remand this
matter.
Vide order dated 28.1.2022, this Court had directed Shri Shrey
Raj Saxena, learned Dy. Advocate General to verify whether the
appeal was decided by the Board without the record.
Shri Saxena, confirms that facts stated in paragraph 7 of the
order dated 24.9.2021 passed by the Commissioner Commercial Tax
Appellate Board, Bhopal (Bench at Indore) are correct.
We are of the considered opinion that while deciding the appeal
by the Appellate Board, the record ought to be there for perusal of the
Presiding Officer/Judge as well as by the counsel for the parties.This
Appeal is liable to be decided after appreciating the material available
on record and not only on the basis of pleadings of the memo of
appeal. Therefore, the record of Subordinate Assessing Authority as
well as the Appellate Authority are necessary before the higher
forum/Court.
Hence, without entering into the merits of the matter as well as
on other question of laws, we remand the matter back to the Appellate
Board for fresh adjudication after summoning the record of Appeal
No.A/101/CTB/IND/17(Praveshkar) and record from the Deputy
Commissioner Commercial Tax as well as the Appellate Authority
Appellate Board Bhopal (Bench at Indore) without being influenced
by the finding and final outcome of order dated 24.9.2021..
The appeal is accordingly, disposed of.
(VIVEK RUSIA) (RAJENDRA KUMAR (VERMA))
JUDGE JUDGE
Digitally signed by
REENA PARTHO
das SARKAR
Date: 2022.02.07
10:56:28 +05'30'
