# Khalil Ahmad v. Revisional Authority, Bareilly and another

- **Citation:** (2005) 1 ILRA 324
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-02-10
- **Case number:** Civil Misc. Writ Petition No. 2209 of 2002
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khalil-ahmad-v-revisional-authority-bareilly-and-another-40444
- **Pages:** 3

## Headnote

S.C.

U.P. Sugarcane Khandsari Adhiniyam
1961-5-3-B-Power
of
the
Revising
authority- once the option accepted and
adjudicated revising authority- can not
reject
such
option-
legal
position
discussed.

Held- Para 6

Once the appellate authority has set
aside the order passed by the assessing
authority rejecting the application for
option and held that application for
option could not be rejected and the said
order
has
become
final,
revising
authority in exercise of power under
Section 3-B of the U.P. Sugar Cane
Khandsdari Adhiniyam, 1961 can not
reject the option application. Order
dated 10.2.2002 passed by the assessing
authority was only a consequential order
to the appellate order. Once the issue
with regard to the acceptance of the
option has been adjudicated and has
become final from the stage of the
appellate authority, it could not be
cancelled by the revising authority in
exercise
of
revisional
power
under
section 3-B of the Act. In fact revision of
order dated 10.1.2002 which was passed
in pursuance of appellate order amounts
of revising the appellate order, thus it is
without jurisdiction.

## Text

324 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
standing counsel for Gaon Sabha Village
Ataur
Pargana
Jalalabad
district
Ghaziabad within three days.
---------
ORIGINAL JURISIDCTION
CIVIL SIDE
DATED: ALLAHABAD: 27.1.2005

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 2209 of 2002

Khalil Ahmad

...Petitioner
Versus
Revisional
Authority,
Bareilly
and
another

 ...Respondents

Counsel for the Petitioner:
Sri R.C. Sinha

Counsel for the Respondents:
S.C.

U.P. Sugarcane Khandsari Adhiniyam
1961-5-3-B-Power
of
the
Revising
authority- once the option accepted and
adjudicated revising authority- can not
reject
such
option-
legal
position
discussed.

Held- Para 6

Once the appellate authority has set
aside the order passed by the assessing
authority rejecting the application for
option and held that application for
option could not be rejected and the said
order
has
become
final,
revising
authority in exercise of power under
Section 3-B of the U.P. Sugar Cane
Khandsdari Adhiniyam, 1961 can not
reject the option application. Order
dated 10.2.2002 passed by the assessing
authority was only a consequential order
to the appellate order. Once the issue
with regard to the acceptance of the
option has been adjudicated and has
become final from the stage of the
appellate authority, it could not be
cancelled by the revising authority in
exercise
of
revisional
power
under
section 3-B of the Act. In fact revision of
order dated 10.1.2002 which was passed
in pursuance of appellate order amounts
of revising the appellate order, thus it is
without jurisdiction.

(Delivered by Hon'ble Rajes Kumar, J.)

1. Present writ petition is under
Article 226 of the Constitution of India
for quashing of the order dated 21.6.2002
passed by Deputy Sugar Commissioner
(Administration),
Revising
Authority,
Bareilly.

2. Brief facts of the case are that the
petitioner was running a Khandsari unit
having licence under the provisions of
U.P.
Khandsari
Sugar
Manufacturer
Licensing Order, 1967. Petitioner was
liable to pay sugar cane purchase tax
under the provisions of 3 of U.P. SugarCane
(Purchase
Tax)
Act,
1961
(hereinafter referred to as 'Act'). Under
the provisions of section 3 of the Act, two
modes were prescribed regarding the
payment of purchase tax, firstly, the tax
was payable on the quantity of sugarcane
actually purchased and secondly, at the
option of the owner of the unit on the
quantity of the sugarcane assessed in
accordance with the provisions of the Act.
The option referred in the provisions subclause (1) of section 3 of the Act should
be exercised by the owner of the unit as
may be prescribed and should relate to the
whole of the assessment year. Option
once exercised shall be irrecoverable for
that year.

3. Petitioner exercised the option to
pay the purchase tax on optional basis for
the year 1986-87 under the provisions of
the Act. The application in Form-13 as
1 All] Khalil Ahmad V. Revisional Authority, Bareilly and another
325
required under Rule 12(A) of the U.P.
Sugar
Cane
Manufacturer
Licensing
Rules, 1965 was sent by post on
18.12.1966,
which
was
admittedly
received in the office of the respondent
no. 2 on 20.12.1986. In the application it
was mentioned that the production would
be
started
from
03.01.1987.
The
functioning of the unit was, in fact, started
from 3.1.1987. Petitioner paid the entire
purchases tax for whole of the assessment
year as prescribed under the provisions
applicable on option basis. It appears that
the
application
in
Form-13
was
acknowledged
and
the
payment
of
purchase tax on option basis have been
accepted. However, on 11.2.1991 after the
lapse of more than four years. The
respondent no. 2 rejected the petitioner's
option for the assessment year 1986-87 on
the ground that form-13 kha was received
in the office late by one day and
consequently assessed the petitioner unit
for the assessment year 1986-87 on the
basis
of
the
sugar
cane
actually
purchased. Petitioner challenged the order
dated 11.2.1991 in writ petition no.
428(Tax) of 1991, which was admitted
but
subsequently,
dismissed
on
13.12.2000 on the ground of alternative
remedy. The petitioner filed appeal before
the Assistant Sugar Cane Commissioner,
Dhampur, Bijnor on 15.1.2001. Petitioner
filed writ petition no.701 of 2001, which
was allowed and the order dated 1.22001
was quashed with the direction to the
appellate authority to entertain the appeal
and decide the same within four months.
Thereafter, the appellate authority vide
order dated 3.9.2001 allowed the appeal
and set a side the order dated 11.2.1991.
Appeal was allowed on the ground that
the cancellation of the application after
more than four years was not justified. It
was also held that once the option
exercised by the petitioner was accepted,
the same was irrecoverable as the
petitioner had deposited the tax on
optional basis and such application could
not be rejected. It was also observed that
rejection of application without giving
opportunity was illegal. Order was
accordingly, quashed and the assessing
authority was directed to take the
proceedings in accordance to the law. It
appears that the assessing authority
passed the order dated 10.1.2002 in which
was stated that the tax had been deposited
under the optional basis and there was no
dues against the petitioner and the notice
issued from the office has been vacated.
Thereafter, a notice dated 1.5.2002 was
issued by the respondent no. 1 to revise
the order dated 10.1.2002 on the ground
that in the application, in From-13, the
date of starting unit was given on 31.1987
and according to the law, the application
should
have
been
received
don
20.12.1986, which is less than fifteen
days. Thereafter, vide impugned order the
respondent no. 1 has passed the revisional
order and cancelled the application by
which option was given and directed the
assessing authority to pass the assessment
order.

Heard learned counsel for the parties.

4. Learned counsel for the petitioner
submitted that the order passed by the
revising authority is illegal and without
jurisdiction.
He
submitted
that
the
revising authority had no jurisdiction to
cancel the application by which option
was given for payment of tax on option
basis. He submitted that the order dated
10.1.2002 was in pursuance of the order
of the appellate authority by which
cancellation of option has been set aside
and the claim of the option has been
326 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
accepted. He submitted that the appellate
order has not been challenged and has
become final. He submitted that the
cancellation of the option application,
amounts to setting aside and sitting over
the appellate order, which is without
jurisdiction. Learned Standing Counsel
supported the order of the revising
authority.

5. Having learned counsel for the
parties, I am of the view that the impugn
ed order can not be sustained.

Section 3-B of the Act reads as follows:

"3-B,
Revision-
The
Cane
Commissioner, in the case of a factory,
and the Sugar Commissioner or any
other officer, not below the rank of
Assistant
Sugar
Commissioner,
authorized by the Sugar Commissioner
in this behalf, in the case of a unit, may,
in order to satisfy himself as to the
legality or propriety of any order
passed by an assessing authority under
this Act, call for and examine either on
his own motion or on the application of
the assessee or the State Government,
to be made within six months of the
date of the order, the record of any
proceedings of assessment and pass
such orde3rs as he may think fit.
Provided that no such application
shall be entertained at the instance of a
party which has a right of appeal but
does not avail of it.
Provided
further
that
no
enhancement shall be made under this
section unless the assessee has been
afforded a reasonable opportunity of
being heard against the enhancement."

6. Once the appellate authority has
set aside the order passed by the assessing
authority rejecting the application for
option and held that application for option
could not be rejected and the said order
has become final, revising authority in
exercise of power under Section 3-B of
the
U.P.
Sugar
Cane
Khandsdari
Adhiniyam, 1961 can not reject the option
application. Order dated 10.2.2002 passed
by the assessing authority was only a
consequential order to the appellate order.
Once the issue with regard to the
acceptance of the option has been
adjudicated and has become final from the
stage of the appellate authority, it could
not be cancelled by the revising authority
in exercise of revisional power under
section 3-B of the Act. In fact revision of
order dated 10.1.2002 which was passed
in pursuance of appellate order amounts
of revising the appellate order, thus it is
without jurisdiction.

7. In the result, writ petition is
allowed. Order dated 21.06.2002 is
quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.2.2005

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Second Appeal No. 1172 of 1996

Sadaphal Singh alias Angnu Singh
 ...Appellant
Versus
Hirday Narain Singh and another

 ...Respondents

Counsel for the Appellant:
Sri V.K. Singh

Counsel for the Respondents:
Sri Bajrangi Misra