(^y'"""- ,^\ (r ^ IN THE HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR Writ Petition No^^2-S pf2005 In the matter of Section 9-B ofthe Chhattisgarh Commercial Tax Act1994 and In the matter of Section 17 ofthe Chhattisgarh Commercial Tax Act 1994 and In the matter ofNotification No. A-3-1-95/ST-V (35) dated 01-04-1995 and In the matter of Schedule II Part IV Entry 11 ofthe Chhattisgarh Commercial TaxActl994 and In the matter of: - Petitioner ^ ^^ c^^ ,^% \<7},..^ ^^ ^ M/s Premchand & Co A Sole Proprietorship Firm Through proprietor Premchand Golchha S/o Late Vijay Lal Golchha, Aged about 52 years, R/o Sadar Bazar, Mahavir Chowk Rajnandgaon (C.G) y^ Respondents ^ ^clgf^%, /f^ /C""':"\^ (^ L^^i :^.' "•).^ II .-.^"^ Versus (1) Appellate Deputy Commissioner ofCommercial Tax, Durg (C.G.) (2) Commissioner of Commercial Tax Vanijyik Kar Bhavan Civil Lines, Raipur (C.G.) (3) State ofChhattisgarh Through Secretary, Department of Commercial Tax, D.K.S. Bhavan, Mantralaya Raipur (C.G) (4) Assistant Commissioner of Commercial Tax, Rajnandgaon (^) Before : Hon9ble the ChiefJustice andhis companion Judges ofthe Hon^ble High Court of Judicature Chhattissarh at Bilaspur Petition under Article 226/227 ofthe Constitution of India for issuance of suitable directions, orders or writs including writs in the nature of Mandamus, Certiorari etc. .\ HIGH COURT OF CHHATTISCxARH : BILASPUR S.B. : HON^BLE SHRI MANINDRA MOHAN SHRIVASTAVA, J. PETITIONER RESPOI3DENTS Wrjt Petition No.2023 of 2005 M/s. Premchand & Co., Rajnandgaon Versus Appellate Deputy Commissioner of Commercial Tax, Dui^& Ors. Petition u/Article 226/227 ofthe Constitution oftodia Appearaiice: Sliri Neelabh Dubey, counsel for the petitioner. Shri Ajay Dwivedi, Dy. Govt. Advocate for the State. ORAL- ORDER (Passedon 13.4.2011) Heard, 2. This petition has been ffled by the petitioner aggrieved by order dated 29th December, 2004 (Annexure P-2) passed by the Appellate Deputy Commissioner, Sales Tax, Durg, Chhattisgarh, whereby, the appeal preferred by the petitioner against the order of assessment dated 2nd January, 2001 has been dismissed. 3. The short issue which tlie petitioner raises in this petition is that the petitioner had filed an appeal challenging inter ali'a tl-ie rate at which value added tax (VAT) is chargeable in the case of fhe petitioner. Placing reliance upon fhe view which was earlier taken ^s;^ y /^" ^ 's^ -2- @ by the Board in the case of Saluja Agency Vs. Commissioner of Sales Tax reported in 2003 (2] STJ 427, it was contended that in the case of the petitioner, instead of 9.2% as the rate at which VAT was found leviable, it is only 4% at which the tax could be levied in respect. of the concenied assessment period 1.4.1998 to 31.3.1999. 4. Leamed coi.msel for the petitioner submits that tlie Appellate Authority has uot considered fhis aspect. at all, Accordiiig to the petitioner, the VAT was leviable @ 4 % and not @ 9.2 % and tJiis aspect has not at all been dealt with by the Appellate Authority in its order. 5. On the other hand, leamed counsel for the State submitted that the Appellate Autliority has considered each and eveiy groLuid raised by tlie petitioner and has come to the conclusion that tlie petitioner was liable to pay VAT @ 9.2 % and his claim that VAT is leviable @ 4% was rejected. He t'urtl-ier submits that if the petitioner is aggrieved by ttie order passed in appeal, Iiis remedy lies in approaching the Sales Tax Tribunal. 6. Leamed counsel for fhe petitioner submitted that at present tlie Tribunal is not functionmg. 7. This statement has not been disputed by learned counsel for the State. 8. Aft.er going through the order passed by tlie Appellate Authority on 29.12.2004 (Annexure P-2), I Imd that tlie ground raised by r'~~ ;r:^ .^^ 1 ...^y -:^^.^'"' -3- h^^ the petitioner that the tax is leviable @ 4% m view of order passed in the case of Saluja Agency (supra) has not at aU. received consideration. In fact, the Appellate Authority has not considered miythiiig in that regard and has only recorded tliat upon consideration^ it is found that proper rate of tax has been applied in the case of the petitioner. Therefore, it is appai'ent that the Appellate Authority has not. duly applied its mnid to the groi.md raised by the petitioner wifh reference to decision, the provision of law applicable. To say the least, there is no consideration at all and the appeal has been uiechaiiically rejected* 9. Therefore, the mipugned order dated 29.12.2004 (Annexure P-2) passed in appeal is set aside. The matter is remanded to the Appellate Authority t.o re-consider the appeal of the petitioner, particularly the ground raised by the petitioner witli regard to tiie leviability of the rate @ 9.2% with reference to fhe provision of law in force in respect. of the period of assessment. 10. It is made clear that this Court has not expressed any opinion with regard to the rate at which the tax is leviable m respect of the relevant period of assessment. 11. The petition is accordingly allowed to tiie extent indicated above. Praveen Sd/- Manindra Mohan Shrivastava Judge