V.^KV^E n f^,^^y iaipEac?Tf ^&y^ ^^B np ft j^ "^u^"; riiuirs U.UUK i Ufynnfki is B.RM R" fifiE s^,s"<u'^ iarSHot^-iSa' ffc^ T1 i^i.^^ I1. B ? ^n^ ? ^m rfn^ S__??nSB ^^ ? B E F^ ^??^ )1^^^T& I11 ji ^ ?^r S—31"^^ U.i5. nUN'Bi.i; SOrti LfrtJKCNUKft 1VII&11KR, & Fax Casia No.. 03 ii S1A ^a' ST'^^BtaU^IiS^^ State of ChhattisQarh Versus M/s Avinash Oil and Paints Pvt. Ltd., f- v.fas'!.K S? 5a6!i 1?" f^ S Sys%9 S°^ it. 1 f^ B B ^t & tSa».BE*^ .ft S^ »?"% nui'i'ULc anK.s K>n.,yrtwiiyts.lw-aili_ Sd/- Dhirendra Mishra Judge J°> 'e^n-' I? Sdl- R.N. Chandrakar Judge ?B^^&: ^^ wsfK ^al VUs,! rUK UKUfcl ^- LlJSja.!E?V lfS^^i ^. i' y j&^ I Sd/- Dhirendra Mishra Judge Ui'sf^'O .f°^i?^,% ^!E3T* ^^t^ ^'^•S-EE-3 ft T'T'? niuri i^-uuixs yr i^nnni 11 !i nei ^F^. *°^ i Ita-s'B&rfa S E? S^S B°" *^> 1 E '^ iiSia.En •sSi''"fli^s u'. Tax Case No. 03 of 200' Petitirinps' ^ '^fr4i<i^i'<^i^ttafrla StateofChhattisgarh, 'hrough Commissioner, Commerciai T; Raipur (CG) ResEondent, Versua M/s Avinash Oi! and Paints Pvt.Ltd., industrial Area, Sirgitti, Bilaspur (CG) T,SE_<?,ffif??' Shri Rajendra Agrav/al, Panei Lav.'yer for the State/petltioner. Shri R.P. Jain with Shri O.P. Agrawal and Shri K.K. Kushwaha, ounsei forthe respondent. no ,'p: V ^;-.»..«- ^anysry; ^ysv ">3:^^ ir unirenara iviisnra,.j The State has fi!ed this application under Section 70(2) of the C.G. Commercial Tax Act, 1SS5 (in short "the Act"), and prayec for quashing of the' impugned order (Annexure P/1) passed by the Chhattisgarh Commerciai Tax Tribunal (In shori: "Tribunal) and further prayed for direction to the Tribunal to refer the foilowing questions of !aw for our opinion: '(i) Whether the learnad Chhattisgarh Commercial Tax Tribunal Ra.ipur erred in rejecting the appSication undsr Sectior, 70 of the Act, submltfed before it, on the ground of limitation?" (si) Whsther "'-the learned CSihattisgarh Commercial Tax Tribunal Raipur erred in rsjecting tlre reference application submitted .before it on merlts holding that the pmposed qiiestion submitted it was mixed question offact and iaw?" Shri Rajendra Agrawai, learned counse! for the State/petitioner, submitted that the order of assessment was passed against the respondent imposing tax and penaltyto the tune of Rs.2,13,169/. The respondent raised an objection that the provisions of Section "a-'^,. A. "&!>. fC^' }'\^^ "'^^;,.-:;^-' S-B ofthe Act wili not be appiicabis to him as the deais in tax paid goods and is not liabie to pay tax under Section 9(1) of the Act and therefore, provisions of Sectlon 9B, as existing before 1st Aprii, 1398, were not applicabie. However, the said ob|6ct!on was r8Jsct©dby ths ASSQSSIHQ OffJCBf. Th8 SS3SSS9S S appeal was partly a'lowed by the Appeilcte Commissioner, Commerciai Tax, and the objection against imposition of Value Added Tax (in short "VAT") was rejected. However, the Board of Revenue, vide order dated 23.1.2002 (Annexure P/4), allowed the appea! and he!d that since it is undisputed that there is no tax iiabiiity of the under Section 9, therefore, imposition of VAT under Section 9-B of the Act, as existed at the relevant time, was not correct. Revenue's appiicafion under Section 70(1) for refemng the question of law arising out of the order of ths appel'ate authority along with statement of case to the High Court, has been further dismissed on the ground that the same vvas Darrea Dy isw OT iiniiiaiiQn. Shri Agrawal argued that the question of law proposed by the revenue was pureiy a legai question having far-reachinQ effect on revenue augmentation. The Tribuna!, without advertlng to the rnerlts of the case, has summarily rejected the appiication on a technical ground that though Shri B.S. Otti, Additional Commissioner, Commercia! Tax, has submitted his affidavit showing reasons for delay in fiiing this application Tor reference, however, in the absence of any application for condonafion of de!ay, the aflldavit cannot be entertained, and the rsasons assigned in the affidavit are also not* satlsfactory. i hus, considering the inordinate delay of more than two years jn TiiSng for referenoe, the applicaflon has been rejected. Therefore, looking to the importance of fhe question of law proposed by the revenue, it was appropriate that the same is ilHQHy 06C!(3QCI Dy 1.HQ itlQn UOUit. On ths cthsr hand, Shri R.P. Jain, learned counsei for thi rsspondsnt, argued that a deaEer, who is dealing in tax pald goods and not haviny any taxab!e turn ovsr Is not liabie for VA /'/ —-1 :-., Ig,. __ w '? 1 '^-s^^^?'"^ ^ 'i?»—-"'1 ;^ "•-3?'' .../: ^^•-.•-^^•-' during 1.5.1997 and 31.3.1999 as Section 9-B, which was inserteci into the statute vide Amendment Act of 19S7, speciiiCaily provids that tax was imposabie only on such dealers, who vvsre Isable to pay tax under Section 9 and whose turn over in the precediny year e)(ceeded rupess one crore. Since the aumittediy, deals !n tax paid goods and not to pay tax undei' Section 9, no VAT under Section 9-B, as existed at 'ths relevant period, can be imposed on him as existing Section a-B came into foree oniy w.e.f. 1 Aprii, 1999. He further argued that there was an inordinate delay in fiiing the appiication for reference and the revenue filed fhe applicatlon without any application for condonation of deiay and in these circumstances, the Tribuna! has rightiy rejected the prayer for reference under Section 70 of the Act on the ground of Q813.y. On due consideration of the arguments advanced by the respectivs and further considering the reasons assigned by the Triburial for rejecting the reference application on the ground of inordinate delay of more than two years, without expressing our opinlon on the merits of the case, we are not inclined to interfere wlth the order by the Tribunal, and we hold that the reference appilcation has rightiy rejected on the ground cf deiay by the Tribunai. The instant appiicstion for reference Is, accordingiy, 'eieciea. Sd/- Dhu-endra Mishra Judge R.N. Chanarakar judge -y> ^1