- (1.) On 25 February 2015, a learned Single Judge has referred the following questions of law for adjudication by the Full Bench: "1. Whether in view of the judgments of the Supreme Court in Hari Shanker versus Rao Girdhari Lal Chowdhury, 1963 AIR(SC) 698 and Shiv Shakti Cooperative Housing Society versus Swaraj Developers, 2003 6 SCC 659 declaring the power of revision as not a substantive right but merely an enabling provision, the provision for a revision under Section 10B of the U.P. Trade Tax Act, 1948 would on the repeal of that Act not be saved under Section 81 (2) of the U.P. Value Added Tax Act, 2008; and 2. Whether the view expressed by the Division Benches of this Court in Dharma Rice Mill versus State of U.P.,2010 UPTC 648 and Kumar Rice Mills versus State of U.P.,2010 UPTC 1594 taking a contrary view lay down the correct law, having been expressed upon non-consideration of the judgments of the Supreme Court in the case of Hari Shanker versus Rao Girdhari Lal Chowdhury and Shiv Shakti Cooperative Housing Society versus Swaraj Developers ."
(2.) The facts in the context of which the revision arises fall in a narrow compass. During the period 1 April 2007 to 31 December 2007, comprised in assessment year 2007-08, the revisionist purchased wheat in the amount of Rs 15,38,264/- for sale to a flour mill. The revisionist is engaged in the business of purchasing and selling food grains on retail and on commission. The flour mill for whom the revisionist had purchased the wheat opted for compounding its tax dues purportedly under a scheme floated by the State of Uttar Pradesh under Section 7-D of the Uttar Pradesh Trade Tax Act, 1948(UP Trade Tax Act). In the assessment proceedings, the purchases and sales made by the revisionist were treated to be exempt from tax. No tax was in consequence imposed on the revisionist. An order of assessment was made on 9 November 2009 for assessment year 2007-08. On 17 June 2010, a notice was issued under Section 10-B by the Joint Commissioner (Executive), Commercial Tax, Kanpur to the revisionist alleging that the entire sale of wheat made by it to the flour mill was not supported by Form-IIIB and was a taxable transaction. The revisionist filed a reply contending that Section 7-D superseded the other provisions of the Act because of which Section 10-B was not applicable. On 1 July 2010, the Joint Commissioner (Executive) declined to accept the submission of the revisionist and directed the Assessing Authority to reassess the transactions of the revisionist. In an appeal which the revisionist filed before the Commercial Tax Tribunal(Tribunal) against the order of the Joint Commissioner (Executive), its contention was that the UP Trade Tax Act having been repealed on 1 January 2008, the power of revision under Section 10-B under the repealed legislation had ceased to exist. In the submission of the revisionist, the power under Section 10-B was in the nature of an enabling provision and did not confer a substantive right. Hence, in the submission, it had not been saved by the Uttar Pradesh Value Added Tax Act 2008(UP VAT Act) and could not have been exercised after 1 January 2008 when the repeal of the UP Trade Tax Act took effect. The revisionist also contended that upon repeal, Form-IIIB had lost its existence and hence the proceedings could not continue on the ground that it had failed to produce Form-IIIB in support of its transaction. By an order dated 27 March 2007, the Tribunal at Kanpur rejected the appeal filed by the revisionist. The Tribunal relied upon two decisions of the Division Benches of this Court in Dharma Rice Mill versus State of U.P.,2010 UPTC 648 and in Kumar Rice Mills versus State of U.P.,2010 UPTC 1594 to hold that even after the repeal of the UP Trade Tax Act on 1 January 2008, the power under Section 10-B could be exercised by the Joint Commissioner and the Assessing Authority could be directed to examine the circumstances in which the wheat was sold by the revisionist.
(3.) When the revision preferred by the revisionist against the decision of the Tribunal came up before a learned Single Judge, the submission which was urged on behalf of the revisionist was that the view which was taken by the Division Benches of this Court in Dharma Rice Mill and Kumar Rice Mill failed to notice that the provision for a revision in Section 10-B of the UP Trade Tax Act was in the nature of an enabling provision and is not a substantive right. Reliance was sought to be placed on the ambit of the remedy of a revision as enunciated in the decisions of the Supreme Court in Hari Shankar Vs Rao Girdhari Lal Chowdhury, 1963 AIR(SC) 698 and Shiv Shakti Co-op Housing Society Vs Swaraj Developers, 2003 6 SCC 659. The judgments of the Division Benches, it was submitted, having not examined the effect of the binding judgments of the Supreme Court, they did not constitute binding precedents. Consequently, it was urged that the provisions of Section 81 (2) of the UP VAT Act did not save the revisional remedy provided by Section 10-B of the Act. The learned Single Judge while adverting to this submission has formed the view that the decisions of the two Division Benches of this Court require reconsideration.;