Civil Appeal No. 2363 of 2007 and Special Leave Petition (Civil) No. 2148 of 2008. Case: 1. Agarwal Oil Refinery Corporation, Kanpur, 2. Commissioner of Trade Tax, U.P. Vs 1. The Commissioner of Trade Tax, U.P. Lucknow, 2. Agarwal Oil Refinery Corporation, Kanpur. Supreme Court (India)
| Case Number | Civil Appeal No. 2363 of 2007 and Special Leave Petition (Civil) No. 2148 of 2008 |
| Counsel | For Appearing Parties: B.S. Chahar, Sr. Adv., Jyoti Sharma, Vinay Garg, Aarohi bhalla, Gunnam Venkateswara Rao, Manoj Kumar Dwivedi and Aviral Shukla, Advs. |
| Judges | D.K. Jain and Asok Kumar Ganguly, JJ. |
| Issue | Uttar Pradesh Trade Tax Act, 1948 - Sections 3AAAA, 4A, 10, 10(1), 10(2), 10(3), 10(4), 10(5), 11 and 22; Limitation Act, 1963 - Section 5; Uttar Pradesh Trade Tax Rules - Rule 41(7) |
| Citation | AIR 2011 SC 2932, 2011 (187) ECR 233 (SC), JT 2011 (9) SC 25, 2011 (8) SCALE 536, (2011) 43 VST 296 (SC) |
| Judgement Date | August 10, 2011 |
| Court | Supreme Court (India) |
Judgment:
Asok Kumar Ganguly, J.
1 Heard learned Counsel for the parties.
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This appeal is directed against the judgment and order passed by the High Court in Trade Tax Revisions in exercise of its revisional jurisdiction under Section 11 of U.P. Trade Tax Act, 1948 (hereinafter referred to as the "Act"). The order of the Tribunal dated 22nd April, 1996 relating to assessment years 1988-89 and1989-90 was impugned in Revisions before the High Court.
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The case of the Appellant, who was the dealer is that it purchased burnt mobil oil and refined the same Mobil oil, but the assessing authority levied tax on the said burnt mobil oil under Section 3AAAA of the Act treating the said oil as "old discarded unserviceable store".
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Admittedly, the first appeal, which was filed by the dealer against such assessment, was allowed and then again a further appeal was filed by the Commissioner of Trade Tax against the order of the first appellate authority. The said appeal by the Commissioner was also dismissed. Thereupon, the Commissioner, Trade Tax filed the revision before the High Court and the revisional Court overturned the concurrent finding of the statutory authorities. In doing so, the High Court came to a finding that the present controversy is covered by a decision of the High Court in the case of Commissioner of Sales Tax v. S/S. Industrial Lubricants reported in 1984 U.P.T.C. 1101.
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Following the said decision, the High Court held that burnt mobil oil purchased by the dealer, the Appellant herein, is covered under the entry of "old, discarded and unserviceable store" being purchased from unregistered dealer and sold in the same condition. According to the High Court they are liable to be taxed as such under Section 3AAAA of the Act during the years under consideration.
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Learned Counsel for the Appellant while assailing the said finding of the High Court, submitted that the case is not covered by the decision rendered by the High Court in the case of S/S. Industrial Lubricants (supra). The only reasoning on the basis of which the High Court in S/S Industrial Lubricants (supra) allowed the revision is that mobil oil after having been used does not retain the character of mobil oil but it becomes "old, discarded and unserviceable store" and that is why the High Court agreed with the revenue that the burnt mobil oil, being old, discarded or unserviceable store, is liable to be taxed under the notifications dated 1.12.1973 and 4.11.1974 @ 3.5% and 4% respectively.
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Reference in this connection may be made to the provision of Section 11 of the said Act to appreciate the extent of revisional jurisdiction of High Court in dealing with the concurrent finding of fact. Section 11 of the said Act is set out below:
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Revision by High Court in special cases.-(1) Any person aggrieved by an order made under Sub-section (4) or Sub-section (5) of Section 10, other than an order under Sub-section (2) of that section summarily disposing of the appeal, or by an order passed under Section 22 by the Tribunal, may, within ninety days from the date of service of such order, apply to the High Court for revision of such order on the ground that the case involves any question of law.
(2) Any person aggrieved by an order made by the Revising Authority or an Additional Revising Authority refusing to state the case under this section, as it stood immediately before April 27, 1978, hereinafter referred to as the said date, may, where the limitation for making an application to the High Court under...
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