Uttarakhand High Court
Vijay Rubber Industries ... vs The Commissioner on 7 March, 2024
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
MS. JUSTICE RITU BAHRI, C.J.
AND
MR. JUSTICE RAKESH THAPLIYAL, J.
07TH MARCH, 2024
COMMERCIAL TAX REVISION NO. 74 OF 2023
Vijay Rubber Industries (TIN-05009658606)
(through its Partner Shri Hitesh Jain,
S/o Shri Abhinandan Kumar Jain)
Salimpur Rajputana, Roorkee,
District Haridwar. ......Revisionist
Versus
The Commissioner, Commercial Tax, Dehradun.
... ...Respondents
Counsel for the revisionist : Mr. P.R. Mullick, learned counsel for
the revisionist.
Counsel for the respondent : Ms. Puja Banga, learned Brief Holder
for the State.
Upon hearing the learned Counsel, the Court
made the following
JUDGMENT :
(PER RITU BAHRI, C.J.)
Heard learned counsel for the parties at length.
2. The revisionist has filed by the present revision
seeking to quash the judgment and order passed by the
learned Commercial Tax Tribunal, Dehradun in Second
Appeal No. 55 of the Uttarakhand Value Added Tax Act,
2005 and the Appellate Order No. 09/2023 (Assessment
Year 2013-14) (State), passed under Section 25(7), read
with Section 29(4) of the Uttarakhand Value Added Tax Act,
2005.
3. Brief facts of the case are that the revisionist is
engaged in manufacture and sale of Retread Rubber. The
revisionist established a factory to manufacture Retread
Rubber at Salimpur, Rajputana, Roorkee in March, 2010.
The process of retreading, i.e. manufacturing 'Retread
Rubber' involves removing the old worn-out tread from a
worn-out tyer, i.e. putting a new rubber surface on the
outer part of the worn-out tyre. The "Retread Rubber", in
layman's language, is a "Procured Rubber", which is used
for retreading of Tyre & Tubes. The classification dispute,
as to whether the self manufactured retread rubber would
be classified in Schedule II(B), i.e. covered under Section
4(2)(b)(i)(b) of the Uttarakhand Value Added Tax Act, 2005
and exigible to tax @ 5% or whether the "Retread Rubber"
would be an unclassified item and exigible @ 13.5% (being
a residual entry) and covered under Section 4(2)(b)(i)(d),
has a chequered history; in as much as, the said
controversy was settled, in a series of disputes raised by
rival parties, i.e. the Assessee and the Department, before
various adjudication / appellate forums.
4. Before the First Appellate Authority, the tax liability on
the sale of "Retread Rubber" being 5%, instead of 13.5%,
and the claim of the ITC were held to be justified by the
First Appellate Authority. The Business Man's Appeal was
accepted by the First Appellate Authority on the main
disputed points, and the above said facts with respect to
liability to pay the tax @5% being accepted by the First
Appellate Authority are not being disputed by the counsel
for the appellant Mr. P.R. Mullick, today in the Court.
5. In the above said background, in the second Appeal
before the Tribunal, the main legal question for
consideration was "whether the Notification dated 31st
March, 2016 (Act No. 2 of 2016), in so far as amending
Section 29(4), was to have a prospective implication and
could not be applied retrospectively for the Assessment
Year 2013-14".
6. In the present case, as per the amendment made in
Section 29(4), as reproduced at Page-74 of the Paper-Book,
if the Commissioner on his own or on the basis of reasons
recorded by the Assessing Authority is satisfied that it is
just and expedient so to do, he may authorise the
Assessing Authority in that behalf, and then such
assessment or reassessment not made after the expiry of
six years after the end of such assessment year or after the
expiry of four years from the date of the order sought to be
reassessed.
7. In the present case, as per the order was passed on
17.11.2017 passed by the Assessing Authority, four years
limitation expires on 17.11.2021 and the notice of
reassessment was issued on 2nd August, 2021, which was
before expiry of four years as per Section 29(4) of the
Uttarakhand Value Added Tax Act, 2005, as amended in
2016, and hence, for all intents and purposes, the
proceeding of reassessment was initiated within the
limitation.
8. Another argument raised by the learned counsel for
the revisionist is that the Joint Commissioner did not have
the power to exercise revisional power. On this aspect, the
Definition Section 2(9) of the Uttarakhand Value Added Tax
Act, 2005, which is at Page-6 of the Paper-Book, reads as
under :-
"(9): "Commissioner" means the Commissioner of
Commercial Tax, appointed by the State Government
and includes an Additional Commissioner, and a Joint
Commissioner of Commercial Tax appointed by the
Government;".
9. Further as per Section 52 of the aforesaid Act, the
revisional power of the Commissioner can be exercised by
any officer not below the rank of Joint Commissioner as has
been authorised on his behalf by the State Government.
10. Another argument of the learned counsel for the
revisionist is that the order dated 17.11.2021 could not
have been revised as per the Notification of 2016 as the
Assessment Year was 2013-14. This argument is liable to
be rejected as the language of Section 29(4) of the
amended Act is very clear that four years' limitation is to be
from the date of the impugned order and the impugned
order in the present case was passed on 17.11.2017 after
the Notification of amendment in 2016. For all intents and
purposes, this order was covered by the Notification, and
the Joint Commissioner had the power to initiate revisional
proceedings within four years. The revisional powers were
initiated on 02.8.2021, which is within four years.
11. Hence, as per Definition Section 2(9) and Section 52
of the Uttarakhand Value Added Tax Act, 2005, the Joint
Commissioner had the power to exercise the revisional
power and it was not beyond his jurisdiction. Hence, no
substantial question of law arises in this Revision and the
same is dismissed. No order as to costs.
______________
RITU BAHRI, C.J.
________________
RAKESH THAPLIYAL, J.
Dt: 07.03.2024
Rathour
