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Court No. - 59 Case :- SALES/TRADE TAX REVISION No. - 389 of 2010 Revisionist :- M/S Kanpur Glass And Picture House Opposite Party :- Commissioner Of Commercial Taxes U.P. Lucknow Counsel for Revisionist :- Rahul Agarwal Counsel for Opposite Party :- C.S.C. Hon'ble Saumitra Dayal Singh,J. 1. Present revision has been filed by the applicant- assessee against the order of the Commercial Tax Tribunal, Agra, dated 23.12.2009, passed in second appeal no. 179 of 2009, for A.Y. 2000-01 (U.P.). By that order, the Tribunal has dismissed the second appeal filed by the assessee and confirmed the re-assessment order, insofar as the assessing authority treated the glass mirror sheet traded by the applicant-assessee as toilet requisite. 2. Heard Sri Rahul Agarwal, learned counsel for the applicant-assessee and Sri B.K. Pandey, learned Standing Counsel for opposite party-revenue. 3. The present revision has been pressed on the following questions of law: "1. Whether, in the facts and circumstances of the case, the mirror glass sheets being sold by the revisionist are liable to be taxed as an unclassified item? 2. Whether, in the facts and circumstances of the case, the Tribunal was justified in taxing the mirror glass sheet being sold by the revisionist either as toilet requisite or by treating them to be different from ordinary glass sheet and therefore falling within the purview of Entry-39 of the Notification dated 20.5.1976?" 4. At the outset, learned counsel for the applicant- assessee has placed reliance on the earlier decision of
this Court, inter parties, in Sales/Trade Tax Revision No. 2269 of 2006, dated 28.05.2014. It reads as below: "1. Heard learned Standing Counsel for the revisionist and perused the record. 2. The questions of law, which have been formulated in memo or revision, whereupon revision has been admitted, read as under: "i. Whether the learned Member Tribunal as well as the Joint Commissioner (Appeal) have committed a manifest error of law and facts in not following the Division Bench judgment of this Hon'ble Court in the case of Tarkeshwar Nath Agrawal Vs. C.S.T., 1975 UPTC 343, which is binding precedent and which clearly covers the controversy involved in the present case to the effect as to whether 'looking glass (mirror) is a 'toilet requisite' and liable to tax accordingly? ii. Whether under the facts and circumstances of the case glass mirror imported and sold by the opposite party during the assessment year 2001-02 was 'toilet requisites' attracting trade tax @ 16%?" 3. The respondent-dealer is engaged in the business of sale and purchase of mirror glass sheet and, therefore, Tribunal has held that it is not "cosmetic mirror glass" but is "unclassified item". 4. Learned Standing Counsel could not dispute that mirror glass sheet by itself could not be used at all and it has to be further worked in respect of size etc. so as to used for any purpose whatsoever, therefore, by itself, it cannot be said to be a 'toilet requisite'. 5. In that view of the matter, I do not find any reason to defer from the view taken by Tribunal. 6. Both the questions, formulated above, are answered against Revenue. 7. The revision is dismissed."
The aforesaid order of this Court is stated to have attained finality, inasmuch as, the revenue has not challenged the same in any further appeal. Placing reliance on that decision, it has been submitted, the commodity remaining exactly the same and there being no other or new circumstance, either with respect to law or the factual aspect of the matter, the earlier decision of the Court that glass and mirror sheets, dealt with by the assessee, were not toilet requisite, would equally bind the revenue authorities in the present case as well. 10. In view of the aforesaid decision of this Court (inter parties), reliance placed by the Tribunal on another decision of this Court in The Commissioner of Trade Tax, U.P. Vs. Kohinoor Glass House, [(2009) 39 NTN 76] is erroneous. In any case, in that decision, the commodity involved was not glass and mirror sheets but mirror glass. 11. Learned counsel for the applicant-assesse has also relied on the decision of the Supreme Court in M/s Radasoami Satsang, Saomi Bagh, Agra Vs. Commissioner of Income Tax, (1992) 1 SCC 659. Paragraph no. 16 is relevant to note, which reads as below: "16. We are aware of the fact that strictly speaking res judicata does not apply to income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year."
In the facts of the present case, it is found that the fundamental aspect, whether a commodity glass/mirror sheets, dealt with by the assessee, were toilet requisite had been decided in the negative i.e. in favour of the assessee and against the revenue in the earlier assessment year. That decision of the Tribunal was confirmed by this Court in the year 2014. Without that decision having been reversed, there is no occasion to allow the matter to be agitated any further. 13. In view of the above, the questions of law (as framed above) are answered in the negative i.e. in favour of the assessee and against the revenue. 14. Accordingly, the present revision is allowed. Order Date :- 18.10.2019 Prakhar