C.T.O.Wc And Lt,Bhilwara vs M/S B Snehi And Compay Ltd
2021 Latest Caselaw 8164 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 21/2010

Commercial Tax Officer (WC & LT), Bhilwara (Raj.).

----Petitioner Versus M/s B Snehi And Compay Ltd., Bhilwara (Raj.)

----Respondent

For Petitioner(s) : Mr. Sunil Bhandari. For Respondent(s) : Mr. Sanjeev Johari.

Mr. Lalit Panwar.

HON'BLE MR. JUSTICE ARUN BHANSALI Order 24/03/2021

This revision petition is directed against judgment dated

23.12.2008 passed by Rajasthan Tax Board, Ajmer, whereby, the

appeal filed by the petitioner against judgment dated 01.01.2008

passed by Dy. Commissioner (Appeals), Commercial Taxes,

Udaipur was rejected.

The revision petition was rejected by relying on certain

judgments of the Tax Board.

Learned counsel for the parties submit that issue raised in

the revision petition, stands concluded by judgment in

Commercial Taxes Officer, Works Contract & Leasing Tax, Alwar v.

M/s Naresh Chand Diwedi: S.B. Sales Tax Revision Petition

No.52/2007 decided on September 19, 2007, against which, the

appeal filed by the Department being Commercial Taxes Officer v.

M/s Naresh Chand Diwedi: Civil Appeal No.4965/2008 has been

dismissed by Hon'ble Supreme Court on 01.09.2015 and,

therefore, the issue raised in the present revision petition stands

(2 of 3) [CR-21/2010]

concluded by order of this Court as upheld by Hon'ble Supreme

Court, therefore, the revision petition be decided, accordingly.

In the case of Naresh Chand Diwedi (Supra) a Co-ordinate

Bench of this Court inter-alia laid down as under:-

"7. There is a well-settled difference between the two concepts of tax and fees and though the dividing line is thin and as per various decisions of the Hon'ble Supreme Court and this court, though the mathematical equation of quid pro quo of the fees payable under the provisions of the Act and benefit in lieu of that is not required to be established by the Revenue to justify the levy of fees, yet the character of fees is necessarily embedded with the concept of quid pro quo, whereas, the tax is a general revenue of the State imposed by virtue of charging provisions of a taxing statute under the legislative competence of the State. The levy of fees cannot be said to be the levy of tax, nor vice versa is true.

8. Admittedly, in the present case, the exemption fees paid by the respondent assessee to obtain exemption certificate seeking exemption from payment of tax on the works contract, is the fees levied by the State Government in lieu of tax. Once such exemption fees is paid and exemption certificate is issued by the competent authority, there remains no question of payment of any tax by the assessee during the period which is covered by the exemption certificate. Irrespective of happening of taxable event of sale of goods used in the execution of works contracts, the exemption fees is payable at one time at the time of initially obtaining of the exemption certificate. The levy of surcharge necessarily goes with the happening of taxable event and tax becoming payable as per the charging provisions of the Act. The levy of surcharge on exemption fees cannot be justified under any circumstances, as neither the exemption fees is a 'tax' nor 'surcharge'

(3 of 3) [CR-21/2010]

on tax can ipso facto become 'additional' exemption fees.

9. .................

10. Therefore, this court is of the opinion that no surcharge was leviable on the exemption fees paid by the assessee works contractor and therefore, the impugned levy of surcharge has been rightly set aside by both the appellate authorities below. While this could not be done even while exercising the regular assessment powers of the assessing authority, much less it could be so done by resort to Section 37 of the Act which pertains to rectification of apparent mistakes on the face of record. The non- imposition of surcharge on the exemption fees at the time of levy and realization of the exemption fees could not be said to be a mistake apparent on the face of the record so as to call for any rectification by resort to Section 37 of the Act. Therefore, the appellate authorities were also justified in holding that Section 37 of the Act could not be invoked for this purpose."

In view of the judgment of this Court in the case of Naresh Chand Diwedi (Supra), which has been upheld by the Hon'ble Supreme Court, there is no substance in the revision petition, the same is, therefore, dismissed.

(ARUN BHANSALI),J 92-pradeep/-

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