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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
MS. JUSTICE RITU BAHRI, C.J. AND MR. JUSTICE RAKESH THAPLIYAL, J. 5TH AUGUST, 2024 COMMERCIAL TAX REVISION NO. 7 OF 2022 (1) The Commissioner, Commercial Tax, Uttarakhand, Dehradun.
……………Revisionist
Versus
M/s Anand Filling Station, Village Sultanpur Patti, Bazpur, District Udham Singh Nagar.………Respondents
COMMERCIAL TAX REVISION NO. 11 OF 2022 (2) The Commissioner, Commercial Tax, Uttarakhand, Dehradun.
……………Revisionist
Versus
M/s Anand Singh, Village Sultanpur Patti, Bazpur, District Udham Singh Nagar. …………Respondents
COMMERCIAL TAX REVISION NO. 16 OF 2022 (3) The Commissioner, Commercial Tax, Uttarakhand, Dehradun.
……………Revisionist
Versus
M/s Anand Filling Station, Gram Sultanpur Patti, Bazpur, District Udham Singh Nagar.………Respondents COMMERCIAL TAX REVISION NO. 17 OF 2022 (4) The Commissioner, Commercial Tax, Uttarakhand, Dehradun.
……………Revisionist
Versus
M/s Puran Gram Aryanagar Sultanpur Patti, Bazpur.
…………Respondent COMMERCIAL TAX REVISION NO. 18 OF 2022 (5) The Commissioner, Commercial Tax, Uttarakhand, Dehradun.
……………Revisionist
Versus
M/s Puran Gram Aryanagar Sultanpur Patti, Bazpur.
…………Respondent
COMMERCIAL TAX REVISION NO. 19 OF 2023 (6) The Commissioner, Commercial Tax, Uttarakhand, Dehradun.
……………Revisionist
Versus
M/s Anand Filling Station, Gram-Sultanpur Patti, Bazpur.
…………Respondent
Counsel for the revisionist
Ms. Puja Banga, learned Brief Holder for the State / revisionist. Counsel for the respondents : Mr. Parikshit Saini, learned counsel for the respondents.
Upon hearing the learned Counsel, the Court made the following
JUDGMENT : (per Ms. Ritu Bahri, C.J.)
Since a common issue is involved in this bunch of Commercial Tax Revisions, they are being disposed of by a common judgment. 2.
For the sake of brevity, the facts of Commercial Tax Revision No. 11 of 2022 titled as ‘The Commissioner, State Tax, Uttarakhand, Dehradun vs. M/s Anand Singh, Village Sultanpur Patti, Bazpur, District U.S. Nagar’ are being taken-up for consideration. 3.
The Commissioner, State Tax, Uttarakhand, Dehradun has come-up in this Revision against the judgment dated 29th February, 2020 passed by the Commercial Tax Tribunal, Haldwani Bench, Haldwani, in two cross Second Appeals, i.e. Second Appeal Nos. 16
of 2020 and Second Appeal No. 70 of 2019 for the Assessment Year 2014-15 filed under Section 53 of the Uttarakhand Value Added Tax Act, 2005 (hereinafter referred to as the VAT Act) and the order dated 01.06.2019 passed by the Joint Commissioner Appeal III, Haldwani in Appeal No. 103 of 2018. The Tribunal has allowed the Second Appeal of the respondent-M/s Anand Singh, Village-Sultanpur Patti, Bazpur, Udham Singh Nagar and has held that the sale price of sand and concrete of a river of a trader in computable year shall be genuine at the rate of Rs. 10.40 per quintal. For the purpose of sale in the assessment year, the Department has not produced any fact, by which it could be verified that any additional sale had been made by the trader except the sale of 1,67,638 quintal as assessed by the First Appellate Court. Due to lack of any evidence, the total sale of sand and bajri of the river was taken to be 1,67,638 quintal and the sale was assessed at Rs. 17,43,435/- and the sale price was taken at the rate of Rs. 10.40 per quintal, and the tax was assessed as under:- Name of good Good’s Price Rate of Tax Payable Tax Sale of river’s sand and river’s Rs. 7,50,000/- 5 percent 37,500/-
bajari (dt. 01.04.2014 to Dt. 16.11.2014) Sale of river’s sand and river’s bajri (dt. 17.11.2014 to dt. 31.03.2015) Rs. 9,93,435/- 9 percent 89,405.15 Total 17,45,435/-
1,26,909.15
Hence, the total tax payable was held to be Rs. 1,26,909.15. 5. In the facts of the present case, the Tax Assessing Officer vide order dated 15.11.2016 held that the respondent was a trader and after mining the goods, was selling sand, concrete, grid, etc. As per the Report received from the Special Investigation Branch Rudrapur Unit, the trader had stored and sold sub- minerals in huge quantity in computable year without registration in the Department. Vide order dated 10th August, 2015, for the first tri-months of the computable year, the demand was created by ex parte floating tax assessing order. The trader filed an Application under Section 31 on 16.02.2016 and, thereafter, the case was re-opened for hearing. As per the Special Investigation Branch’s report, the trader had provided Form-F
(license of storing minerals) to the District Mining Officer Udham Singh Nagar and, as per this, the trader had taken in a huge quantity of outlet of general sand during the year 2014-15. By accepting the report of the Special Investigation Branch, the declared sale by the trader was denied and, for the impugned year, the tax was assessed as follows:- 1 RIVR SAND 80000000.00 5% 400000.00
Total in whole 80000000.00 400000.00
Since the respondent-trader had already deposited tax of Rs. 1,44,834.00, and therefore, by deleting this amount, the demand of Rs. 2,55,162.00 remained in balance. 7. The respondent-trader filed a First Appeal before the First Appellate Court, and the First Appellate Court, vide judgment dated 1st June, 2019, partly allowed the First Appeal on the following grounds:-
(i) As per the case of the respondent-trader, he was a mining patta holder. He was not bearing any expenses of mining work because the storer, stone crusher owner’s representative or other persons by showing royalty receipt had taken the sand and bajari from the agricultural land of the
appellant therein by their labourers by their own vehicles and at the spot, by issuing royalty receipt, the amount of the profit share and petty expenses were recovered. (ii) Uttarakhand Forest Development Corporation, which is the main patta holder of the State Government, had recovered Rs. 13.45 per quintal in the year 2013-14 and Rs. 13.70 per quintal for the year 2014-15 towards installation, staff, labour welfare, damages forest, river training, survey, jaloni and income tax etc. from storer, stone crushers, and other consumers.
The Tribunal held that in the mining work, the first stage is of patta holder, the second stage is of storekeeper and the third stage is of stone crusher / consumer. The respondent was a Pattakarta at first stage, by whom no expenses were made in the mining work. The quality of the mining minerals of the Uttarakhand Forest Development Corporation region is better than the mines outward from the land of patta holder situated at the bank of rivers. The main reason is that the region of the Uttarakhand Forest Development Corporation is at the higher side of the
river and the land of patta holder is at the lower side of the river. Due to this, the cost of the goods sold by the person / storer / stone crusher in Uttarakhand Forest Development Corporation is so more. Uttarakhand Forest Development Corporation had fixed the rate by including the expenses except royalty. The patta holder had not recovered any excess amount from the rates. The Government had fixed the compound amount in respect of the outwards sub-mines (sand and bajari) from the river from the other region except forest region for the years 2012-13 and 2013-14 vide Notification No. 970 dated 06.11.2012 of Rs. 7.29 per ton. For the computable year, the rate of the sand and bajari had been fixed at Rs. 14.58 per quintal. The case of the respondent-trader before the Tribunal was that the Commercial Tax Officer in the case of storage holder had fixed the sale price at Rs. 21.00 per quintal and in respect of mines under the compound scheme rate of sand and bajari was fixed by the Government at Rs. 14.58 per quintal and the Uttarakhand Forest Development Corporation has assessed sale rates Rs.13.45 & 13.70 per quintal in the computable year. The case of the respondent before the Tribunal was that the rate of Rs. 22.00 per quintal as assessed by
order dated 29th January, 2015 was on the higher side and improper. 9. In the Cross Appeal filed by the Revenue, the main ground taken was that even if the respondent- trader was a patta holder, the work of Chugan (collection and lifting) has been taken up through manual labour only, by which the cost of the collection of goods increased. After this, the sub minerals are carried out by loading in the vehicles to the business place of the purchaser and hence, in the cost of preparing goods of the trade minerals, the expenses incurred in Chugan, loading, unloading, weighing/ weighment are included, and in this backdrop, the cost of goods assessed by the First Appellate Officer for the year 2014-15 towards RBM was not proper and is liable to be modified and set aside. In this background, the prayer was made that the judgment passed by the First Appellate was liable to be set aside, and the order of the Tax Assessing Officer was proper. After hearing the counsel for the parties and going through the facts of the case, the Tribunal proceeded to decide the dispute as to what should be the sale rate of river’s sand, bajari and bolder which is called in brief as RBM.
Before the Tribunal, the respondent-trader placed a copy of the Government Letter No. 2053/VII-I/155- Kh/2013 dated 15.10.2013, by which he was issued patta to collect / chugan the sand, bajari, bolder from 0.869 hectare land as per Agreeent dated 17.10.2014. A copy of the Agreement dated 17.10.2014 in respect of the mining pata, photo copy of the Notification Letter No. 2182 dated 21.08.2014 of Commissioner Tax, Uttarakhand were filed. The case set-up by the respondent was that he being the patta-holder sold the available sub-minerals as per mining patta under the Uttarakhand Sub Minerals (Parihar) Rules from Khanimukh (pits mouth) in same condition as received. Loading and transportation expenses were borne by the purchaser. Sand, bajari (RBM) from river’s bank Rs.50/- per ton i.e. Rs. 5 per quintal was being paid from 18th January, 2013. Vide letter No. 3562 dated 05.10.2013 issued by the Uttarakhand Forest Development Corporation, Dehradun, the sale rate was fixed at Rs. 13.45 and vide letter No. 4246 dated 20.11.2014, the rate of sale of mining goods was fixed at Rs. 13.70, in which except the royalty of Rs. 5/- the share of profit was 10 percent. The stamp duty, installation expenses, stock and labour welfare,
damages forestication, river training and survey jaloni expenses and TDS of income tax were included. The patta holder has not recovered any other amount except the royalty of Rs. 5/-, stamp duty lumpsum and share of profit. 11. The main ground taken by the Department was that the assessment of rate of Rs.22/- per quintal of RBM by the First Appellate Court for the computable year was very law and the Tax Assessing Officer had assessed the sale price of the goods at Rs. 47 per quintal, i.e. at the prevalent market price, which was correct. The Tribunal further observed that without any proof of transportation expenses, the Tax Assessing Officer could not include the transportation expenses as part of sale price. The respondent-trader had admitted the share of profit in the sale price. The trader had admitted the stamp duty of Rs. 0.40 per quintal, which was at par with the Uttarakhand Forest Development Corporation and the nature of work being same, by referring to another decision given by the Commercial Tax Tribunal, Dehradun in the matter of M/s Kashup Traders, Village Ajeetpur Kankhal, Haridwar, for the year 2011-12, the price of mineral was admitted at Rs. 21/- per quintal. Because that case was related to the
work of a stockiest, in which in the fixed price of goods by Pattakarta, expenses of loading, unloading transportation from mining spot to business place, and his share of profit were added. For the assessment of the sale price of sand / concrete, the transportation expenses was a big factor, which is assessed on the basis of the distance of the spot of storage from the place of mining. 12. Since in the present case, the respondent was only a patta holder, therefore, the cost of transportation, which is a very important factor, cannot be made basis to assess the sale price. 13. Keeping in view that the respondent was only a patta holder and was dealing only with selling of concrete, and sand from the river bed to trader / stone crusher, the Tribunal proceeded to fix the sale price of sand and concrete for the computable year at the rate of 10.40 per quintal. The fixation of this rate has been made keeping in view that for the same computable year, the Uttarakhand Forest Development Corporation had assessed the sale price at the rate of Rs. 13.45 and 13.70 per quintal. It is further important to note that the nature of sand and bajari of the Uttarakhand Forest Development Corporation is of much superior quality,
and keeping in view the above facts, the judgment passed by the Tribunal fixing the sale price at the rate of Rs. 10.40 per quintal does not require any modification. Taking this rate into account, with regard to total sale of 167638 quintal of sand, bajari of the river bed of the respondent being patta holder, the sale amount has been taken to be Rs. 17,43,435/- and the calculation made for the first and fourth tri-months has been assessed by the Tribunal correctly. The final assessment, upon the appellant, has been done at Rs. 1,26,909.15. 14. Counsel for the State / revisionist has not been able to dispute the finding of fact recorded by the Tribunal that the respondent is a patta holder and the nature of sand and bajari collected by them is of inferior quality than that of the Uttarakhand Forest Development Corporation. Another fact, which could not be disputed by the counsel for the appellant, was that apart from being patta holder, there was no evidence that he had spent any money on transportation of sand and bajri from the mining site to the purchaser’s site, hence the cost of transportation, which is a big factor, could not be included in the sale- price. The judgment of the Tribunal is based on correct
finding of fact. No substantial question of law arises for consideration in this Commercial Tax Revision. Hence, the same is dismissed. 15. Accordingly, other connected Commercial Tax Revisions, wherein also a common issue is involved, also stand dismissed as no substantial question of law arises there as well.
______________ RITU BAHRI, C.J.
__________________ RAKESH THAPLIYAL, J. Dt: 5th August, 2024 Rathour