# M/S Rajansh Marble House Gomti Nagar Lko v. The Commissioner Commercial Tax & Anr

- **Citation:** (2024) 1 ILRA 580
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-11
- **Case number:** Sale/Trade Tax Revision No. 39 of 2018
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-rajansh-marble-house-gomti-nagar-lko-v-the-commissioner-commercial-tax-anr-51376
- **Pages:** 8

## Headnote

Civil Law - The U.P. Value Added Tax
Rules, 2008 - Section 57(8) -Challenge to
Commercial Tax Tribunal's judgment dated
19.03.2018 - Non-compliance with Rule 63(5) of
U.P. VSA.T. Rules, 2008 and Section 57(8) of
U.P. VSA.T. Act, 2008 - Tribunal failed to St.
points for determination, decision, and reasons -
Judgment set aside as non-compliant with
mandatory provisions - Matter remitted for fresh
decision within three months.

List of Cases cited:

## Text

580 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 104 read with Order XLIII Rule
1(u) of the Code, and place it as fresh,
before
the
appropriate
Bench,
on
30.01.2024.
----------
(2024) 1 ILRA 580
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.01.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Sale/Trade Tax Revision No. 39 of 2018

M/S Rajansh Marble House Gomti Nagar
Lko. ...Petitioner
Versus
The Commissioner Commercial Tax & Anr.
 ...Respondents

Counsel for the Petitioner:
Rajesh Kumar Shukla Dr.

Counsel for the Respondent:
C.S.C.

Civil Law - The U.P. Value Added Tax
Rules, 2008 - Section 57(8) -Challenge to
Commercial Tax Tribunal's judgment dated
19.03.2018 - Non-compliance with Rule 63(5) of
U.P. VSA.T. Rules, 2008 and Section 57(8) of
U.P. VSA.T. Act, 2008 - Tribunal failed to St.
points for determination, decision, and reasons -
Judgment set aside as non-compliant with
mandatory provisions - Matter remitted for fresh
decision within three months.

List of Cases cited:

1. Ved Ram Vs Harish Chandra & anr., 2005 (23)
LCD 604

2. Smt. Damyanti Devi Vs Brindaban, 1979 AWC
687 : (1979 All LJ (NOC) 110)

3. Keluni Dei Vs Kanhei Sahu, AIR 1972 Orissa
28

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Dr R. K. Shukla, learned
counsel for the revisionist and Shri Sanjay
Sarin, learned counsel for the respondents
no.1 and 2.

2. The instant revision has been
filed raising a challenge to judgement and
order dated 19.03.2018 passed by learned
Commercial Tax Tribunal, Lucknow, U.P.
to the extent it relates to Second Appeal
No. 68 of 2017 (A.Y. 2011-12) filed by
the revisionist. Substantial questions of
law have been set forth in the revision.

3. This Court vide the order dated
03.05.2018 had admitted the revision on
two substantial questions of law namely:

"(1) Whether, the judgement & order
dated 19.3.2018 passed by learned
Commercial Tax Tribunal in Second
Appeal No. 68 of 2017 (2011-12) is
vitiated due to non-compliance of the
mandatory provisions laid down under
Rule 63(5) of the U.P. V.A.T. Rules, 2008
read with Section 57(8) of the U.P. V.A.T.
Act, 2008.

(5) the principle of best judgement
assessment can be resorted to on the
basis of presumption and surmises,
without any material on record."

4. The Court heard learned counsel
for the revisionist on the first substantial
question of law which is:

"(1) Whether, the judgement & order
dated
19.3.2018
passed
by
learned
Commercial Tax Tribunal in Second Appeal
No. 68 of 2017 (2011-12) is vitiated due to
non-compliance
of
the
mandatory
provisions laid down under Rule 63(5) of
the U.P. V.A.T. Rules, 2008 read with
Section 57(8) of the U.P. V.A.T. Act, 2008."
1 All. M/S Rajansh Marble House Gomti Nagar Lko. Vs. The Commissioner Commercial Tax & Anr. 581

5. Learned counsel for the revisionist
contends that Section 57(8) of the U.P.
V.A.T. Act, 2008 (hereinafter referred to
as the Act 2008) provides that the
Tribunal may, if it has not already
dismissed the appeal under Section 57(7)
of the Act 2008, after calling for and
examining relevant records and after
giving
the
parties
reasonable
opportunities of being heard or as the
case
may
be
after
following
the
procedures
prescribed
under
Section
57(5) (a) confirm the order, (b) set aside
the order and (c) order such amount of
tax to be refunded.

6. Section 56(5) of the Act, 2008
provides the manner and procedure of
summary disposal of appeal to be as may
be prescribed.

7. Rule 63(5) of the U.P. V.A.T.
Rules, 2008 (hereinafter referred to as the
Rules, 2008) provides that a judgement
and appeal shall be in writing and shall
state (a) the points for determination, (b)
the decision thereon and (c) the reason
for such decision.

8. Placing reliance on the judgement
of this Court in the case of Ved Ram Vs
Harish Chandra and another, 2005 (23)
LCD 604 the contention of learned
counsel for the revisionist is that the
provisions of Rule 63(5) of the Rules,
2008 are akin to Order 41 Rule 31 Code
of Civil Procedure, 1908 which have been
held to be mandatory by this Court in the
case of Ved Ram (Supra).

9. Drawing attention of this Court
towards the judgment of learned Tribunal,
a copy of which is annexure 1 to the
revision, the argument of learned counsel
for the revisionist is that learned Tribunal
has neither indicated the points for
determination nor given any decision after
noting the said points for determination or
the
reasons
for
such
decision
and
consequently the impugned judgement
would be against mandatory provisions of
Section 57(8) read with 57(5) of the Act,
2008 and Rule 63(5) of the Rules 2008.

10. On the other hand, Shri Sanjay
Sarin, learned Additional Chief Standing
Counsel has supported the judgement and
order passed by learned Tribunal.

11. Heard learned counsels for the
parties and perused the record.

12. From a perusal of record it
emerges that the appeal filed by the
revisionist namely Second Appeal No. 68
of 2017 for the Assessment Year 2011-12
has been dismissed by learned Tribunal
vide its judgement and order dated
19.03.2018.

13. As per the learned counsel for the
petitioner, the provisions of Section 57(8),
Section 57(5) of the Act, 2008 and Rule
63(5) of the Rules 2008 the judgment of
learned Tribunal in appeal has to state the
points for determination, the decision
thereon and the reason for such decision.

14. For the sake of convenience, the
provisions of Section 57 of the Act, 2008
are reproduced below:

"57. Tribunal.- (1) There shall be [a
Tribunal to be known as Commercial Tax
Tribunal] consisting of such members
including
a
President
as
the
State
Government may, from time to time, deem it
necessary to appoint from amongst-

(a) the persons who are qualified to be
the judge of the High Court;
582 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) the persons belonging to the Uttar
Pradesh Trade Tax Services or the Uttar
Pradesh Commercial Tax Services who
hold or have held a post not below the rank
of Joint Commissioner.

Provided that-

(i) where the Tribunal consists of one
or more persons who is or are member or
members of the U.P. Higher Judicial
Service, then he or senior most amongst
them shall be appointed as the President;

(ii) no person shall be appointed
from amongst the advocate unless-

(A) he has paid Income Tax on his
income from his legal profession in each
of ten consecutive years preceding such
appointment;

(B) he has attained the age of fifty
years on the date of appointment;

(C) such Members from amongst
Advocates shall be appointed for a term
of
three
years
from
the
date
of
appointment or till he attains the age of
60 years whichever is earlier.

(2) The State Government may
prescribe such other qualification or
conditions for the appointment of the
President and the other members of the
Tribunal as it may deem fit.

(3) The provisions of Rule 56 of the
U.P. Fundamental Rules shall continue to
apply to every member of the Tribunal
including
the
President
whether
appointed under the erstwhile Act or
under this Act on or after the date of the
commencement of this Act, as they apply
to any other Government servant.

(4) Any person aggrieved by [an
order passed under Section 42, Section
55] Section 56, a decision under Section
59 or a direction under the proviso of
sub-section (7) of Section 48 may, within
ninety days from the date of service of the
copy of such order, decision or direction on
him, prefer an appeal to the Tribunal.

Provided that where order passed by
the appellate authority under Section 55 is
an order in respect of demand of any
security, not being security demanded for
release
of
goods
seized
under
any
provisions of this Act, appeal under this
section may be filed only after furnishing
security, fixed by the appellate authority
under section 55:

Provided further that where the
disputed amount of tax, fee or penalty does
not exceed two thousand rupees and no
question of law is involved, the appellant
may, at his option, request the Tribunal in
writing for summary disposal of his appeal,
whereupon the Tribunal may decide the
appeal accordingly.

Explanation. - For the purposes of
this sub-section, the expression 'any person'
in relation to any order passed by an
authority other than the Commissioner
includes the Commissioner and, in relation
to any order passed by the Commissioner
includes the State Government;

(5) The manner and procedure of
summary disposal of appeal shall be such
as may be prescribed.

(6) Section 5 of the Limitation Act,
1963 shall apply to appeals or other
applications under this section.

(7) The Tribunal may at any stage,
after giving the appellant a reasonable
opportunity of being heard, dismiss the
appeal.

(8) The Tribunal may, if it has not
already dismissed the appeal under subsection (7), after calling for and examining
the relevant records, and after giving the
parties a reasonable opportunity of being
heard or, as the case may be, after
following the procedure prescribed under
sub-section (5):

(a) confirm, cancel or vary such order, or

(b) set aside the order and direct the
assessing or appellate or revising authority
1 All. M/S Rajansh Marble House Gomti Nagar Lko. Vs. The Commissioner Commercial Tax & Anr. 583
or the Commissioner as the case may be, to
pass a fresh order after such further
enquiry, if any, as may be specified , or

(c) order such amount of tax, fee or
penalty or other money as may have been
realized in excess of the due amount to be
refunded according to the provisions of this
Act.

(9) Where an appeal under this section
has been filed, the Tribunal may, on the
application of the appellant moved along
with the memorandum of such appeal after
giving the parties a reasonable opportunity
of being heard, stay the operation of the
order appealed against or the recovery of
the disputed amount of any tax, fee or
penalty payable, or refund of the amount
due, or proceeding for re-assessment under
the order appealed against till the disposal
of the appeal:

Provided that-

(i) where appellate authority under
section 55 has set aside an order of
assessment or penalty and has remanded
the case to the assessing authority, for
decision afresh, and the appellant under
this section is a person other than the
Commissioner or the State Government, for
the purpose of this section, disputed
amount of tax or penalty shall be deemed to
be the same which had been before
appellate authority under section 55; and

(ii) subject to the provision under sub
clause (i) where order appealed against
does not involve any dispute about
quantum of tax, fee or penalty, on the
application of the appellant the Tribunal
may stay the operation of such order till the
disposal
of
appeal
subject
to
such
conditions
including
a
condition
of
furnishing of a security in cash within the
time allowed;

Provided further that-

(a) no application for stay of recovery
of any disputed amount of tax, fee or
penalty shall be entertained unless the
applicant has furnished satisfactory proof
of the payment of not less than one third of
such disputed amount in addition to the
amount required to be deposited under subsection (3) of Section 55.

(b) the Tribunal may, for special and
adequate reasons to be recorded in writing,
waive or relax the requirement of clause (a)
regarding payment of the one-third of such
disputed amount.

(10) Where the Tribunal passes an
order under this section for the stay of
recovery of any tax, fee or penalty or for
the stay of the operation of any order
appealed against and such order of the
Tribunal results in the stay of recovery of
any tax, fee or penalty, such stay order of
the Tribunal shall not remain in force for
more than thirty days unless the appellant
furnishes
adequate
security
to
the
satisfaction of the assessing authority
concerned
for
the
payment
of
the
outstanding amount.

(11) The members of the Tribunal shall
sit in such benches of one, two or more
members, as may be constituted from time
to time, and do such work of the Tribunal
as may, subject to sub-section (12) and the
rules framed under this Act, be allotted to
them, by order or in accordance with the
directions of the President of Tribunal.

(12) (a) An appeal against the order of
appellate authority under Section 55 shall
be heard and disposed of-

(i) [by a bench of two members, where
in such order, not being an order passed on
the application of the appellant for stay, the
amount of tax, fee or penalty in dispute
exceeds two lakh rupees or such amount
not exceeding three lakh rupees as may be
determined by the State Government from
time to time.]
584 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) by a single member bench, in any
other case.

[(b) An appeal against a direction
given under the proviso to sub-section (7)
of Section 48 shall be heard and disposed
of by a bench of two members;

(c) an appeal against an order under
Section 56 shall be heard and disposed of
by a bench of two members.]

(d) An appeal against [an order
passed by the Commissioner under section
42 or a decision given under section 59],
shall be filed before the President and shall
be heard and disposed of by a bench of
three members.

(e) The President may, if he so thinks
fit,-

(i) direct an appeal to be heard and
decided by a larger bench;

(ii) transfer an appeal from one bench
to another bench.

(f) In a case before a bench consisting
of two or more members any order other
than an order finally disposing of the case
may be passed by any one of the members
constituting the bench:

Provided that an appeal against an
order passed on an application for stay,
may be disposed of finally by a single
member bench.

(13) All appeals arising out of the
same cause of action in respect of an
assessment year shall, as for as possible, be
heard and decided together:

Provided that where anyone or more
of such appeals have been heard and
decided earlier, if the bench hearing the
remaining appeals considers that such
decision may be a legal impediment in
giving relief in such remaining appeals, it
may, if the earlier decision was given-

(a) by a smaller bench or a bench of
equal strength, recall such earlier decision
and proceed to decide all the appeals
together;

(b) by a larger bench, refer such
remaining appeals to such larger bench
having jurisdiction and thereafter such
larger bench may recall such earlier
decision and proceed to decide all the
appeals together.

(14)
The
place
of
sitting
and
procedure of, and the manner of presenting
appeals and other documents to the
Tribunal shall, subject to the rules framed
under this Act, be such as the Tribunal may
deem fit to adopt.

(15) The decision, of case heard by a
bench, shall be in accordance with opinion
of the majority. Where the members are
equally divided the President of the
Tribunal may,-

(a) if he was not a member of such
bench, give his own opinion or refer the
case for the opinion of another member,
whereupon the case shall be decided in
accordance with such opinions; or

(b) form a larger bench."

15. For the sake of convenience, the
provisions Rule 63 of the Rules, 2008 are
reproduced below:

"63. Disposal of appeal.- (1) The
appeal shall be heard on the date to be
fixed by the appellate authority or the
Tribunal, as the case may be.

(2) The appellate authority or the
Tribunal, as the case may be, shall cause a
notice of the date fixed to be served well in
time on parties to the appeal at the
addresses mentioned in the memorandum of
appeal, or on their lawyer or authorized
agent.

(3) The notice for cases fixed for
hearing in a week shall be fixed on the
notice board of the appellate authority or
the Tribunal, as the case may be, on the last
working day of the preceding week.
1 All. M/S Rajansh Marble House Gomti Nagar Lko. Vs. The Commissioner Commercial Tax & Anr. 585

(4) On the date of hearing, if all the
relevant records of appeal have been
received, the parties shall be given
reasonable opportunity of being heard and
the appellate authority or the Tribunal, as
the case may be, may after examining all
the relevant records, decide the appeal:

Provided that if, despite proper service
of the notice either party is not present, the
appeal may be heard and decided ex parte.

(5) The judgment in appeal shall be in
writing and shall state -

(a) the points for determination,

(b) the decision thereon, and

(c) the reasons for such decision.

(6) Cross appeals arising out of the
same case, admitted by the Tribunal shall,
as far as possible, be heard and decided
together.

(7) Copy of every order under Section
55 and Section 57 shall be delivered to, or
served on the parties concerned free of
charge. Copies of such order other than the
first copy shall be given to the parties
concerned on application and on furnishing
copying folio of the value of twenty rupees.

(8) Any applicant or opposite-party
shall be entitled to have his case argued
before the appellate authority or the
Tribunal by a lawyer or an accountant or a
State Representative, as the case may be.

(9) The provisions of Rule 72 shall,
mutis mutandis apply to service of notice,
summons, order, etc. under this rule:

Provided that the service, on the State
Representative, shall be deemed to be the
service on the Commissioner."

16. For the sake of convenience, the
provisions of Order 41 Rule 31 Code of
Civil Procedure are reproduced below:

"31. Contents, date and signature of
judgment.- The judgment of the Appellate
Court shall be in writing and shall state-

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is
reversed or varied, the relief to which the
appellant is entitled;

and shall at the time that it is
pronounced be signed and dated by the
Judge or by the Judges concurring
therein."

17. From perusal of Section 57 of the
Act, 2008 it emerges that the same pertains
to Commercial Tax Tribunal. Section 57(5)
of the Act 2008 provides that the manner
and procedure of summary disposal of
appeal shall be as may be prescribed.
Section 57(8) of the Act, 2008 provides that
the Tribunal after calling for and examining
the relevant records and after giving the
parties reasonable opportunity of being
heard or as the case may be after following
the
procedure
prescribed
in
Section
57(8)(a) of the Act, 2008 may confirm,
cancel or vary such order or (b) set aside
the order and direct the assessing or
appellate or revising authority or the
Commissioner to pass a fresh order or (c)
order such amount of tax, fee etc realized in
excess to be refunded.

18. Rule 63 of the Rules 2008
provides the procedure for disposal of
appeal. Rule 63(5) of the Rules 2008
stipulates that the judgement in appeal shall
be in writing and shall state (a) the points
for determination, (b) the decision thereon
and (c) the reasons for such decision.

19. Order 41 Rule 31 of the Code of
Civil
Procedure
provides
that
the
judgement of the appellate court shall be in
writing and shall state (a) the points for
determination, (b) the decision thereon, (c)
the reasons for the decision and (d) whether
586 INDIAN LAW REPORTS ALLAHABAD SERIES
the decree appealed from is reversed or
varied, the relief to which the appellant is
entitled.

20. From perusal of the aforesaid it is
apparent that the provisions of Order 41
Rule 31 Code of Civil Procedure are akin
to Rule 63(5) of the Rules 2008.

21. As already indicated above
Section 57(8) of the Act, 2008 stipulates
that the manner and procedure of summary
disposal of appeal shall be such as may be
prescribed and Rule 63 of the Rules, 2008
stipulates the manner and procedure of
summary disposal of appeal.

22. Again, as per the Rule 63(5) of the
Rules, 2008 the judgement in appeal has to
state the points for determination, the
decision thereon and the reasons for such
decision which, as already indicated above,
is akin to Order 41 Rule 31 Code of Civil
Procedure.

23. The provisions of Order 41 Rule
31 Code of Civil Procedure have been held
to be mandatory in the case of Ved Ram
(supra) wherein this Court has held as
under:

"6. The only point involved in the
present appeal is whether substantial
compliance has been made by the first
appellate Court of Order 41, Rule 31 of the
Code of Civil Procedure. Order 41, Rule
31, CPC states as under :

"31. Contents, date and signature of
judgment. The judgment of the Appellate
Court shall be in writing and shall state -

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is
reversed or varied, the relief to which the
appellants is entitled;

and shall at the time that it is
pronounced be signed and dated by the
Judge or by the Judges concurring
therein."

7. The provisions of Order 41, Rule 31
of the Code of Civil Procedure are
mandatory. The first appellate Court while
delivering the judgment is required to set
out the points for determination, record the
decision thereof and give its own reasons
for the said decision. Looking at the plain
language of the section, it is clear that
failure to comply with this provision would
not be a mere irregularity but would render
the judgment nugatory. The first appellate
Court being the last fact finding Court
cannot run away from its onerous duties of
recording the finding of fact and discussing
the evidence and recording the findings of
fact. In 1979 AWC 687 : (1979 All LJ
(NOC) 110), Smt. Damyanti Devi v.
Brindaban it was held-

"Where the judgment of the appellate
Court is of reversal, the appellate Court
should consider all the relevant and
material evidence on record and thereafter
give reasons for the said decision."

8. In Keluni Dei v. Kanhei Sahu, AIR
1972 Orissa 28, it was held -

"It is incumbent upon the final Court
of fact, particularly in the case of reversing
decision this is an instance of reversal as
all the material findings were being
reversed to meet the reasonings of the trial
Court and indicate its own reasons for the
conclusions to be reached."

9. In my view, the judgment of the first
appellate Court cannot be said to be a
judgment within the meaning of Order 41,
Rule 31, CPC. The appellate Court has
neither discussed the evidence or has given
any reason for reversing the decision given
by the trial Court on various issues. It was
the duty of the appellate Court to discuss the
entire evidence afresh, take notice of the
1 All. Rakesh Kumar Vs. State of U.P. & Ors.
587
features which were noticed by the trial Court
and then give its own independent reason.
The lower appellate Court has failed to
discharge its duties as a final Court of fact.
The appellate Court has shirked its duties
and has not discussed the evidence brought
on record. On several occasions the appellate
Court has only criticised the efforts made by
the trial Court in issuing various commission
in order to identify the land. The appellate
Court instead of giving a finding of various
issues framed by the trial Court has allowed
the appeal on the ground that the plaintiff
had failed to establish that the disputed land
belonged to him. This finding given by the
appellate Court, in my opinion, is based on
no reason or evidence. The appellate Court
has omitted to take stock of the entire
material and failed to take a cumulative view
from the material evidence on record."

24. From perusal of the judgement of
this Court in the case of Ved Ram (supra) it
emerges that this Court has held the
provisions of Order 41 Rule 31 Code of Civil
Procedure to be mandatory and that the first
appellate
court
while
delivering
the
judgement is required to set out the points for
determination, record the decision thereon
and give its own reason for the said decision.

25. This Court has further held that
failure to comply with these provisions
would not be a mere irregularity but would
render the judgement nugatory.

26. Accordingly, when the impugned
judgement of learned Tribunal is seen in the
context of the law laid down by this Court
in the case of Ved Ram (supra) vis a vis
the provisions of Section 57(8) and Section
57(5) of the Act, 2008 read with Rule 63(5)
of the Rules, 2008 it clearly emerges that
learned Tribunal has patently erred in
neither noting the points for determination
nor giving the reason for such decision
thereon. Even though certain reasons are
indicated in the impugned judgement, as
emerge from a perusal of the said
judgement, yet without determining the
points for determination and the reasons for
such decision thereon, it cannot be said that
the judgement of learned Tribunal complies
with the provisions of Rule 63(5) of the
Rules, 2008.

27. Keeping in view the aforesaid
discussion, the revision is allowed. The order
impugned dated 19.03.2008, a copy of which
is annexure 1 to the revision, is set aside so far
as it pertains to Second Appeal No. 68 of 2017
in re: Sarvshri Sarvshri Rajansh Marble
House vs Commissioner of Commercial
Tax, Lucknow.

28. The matter is remitted to learned
Commercial Tax Tribunal, Lucknow, U.P.
to pass a fresh decision in accordance with
law complying with the provisions of
Section 57 of the Act, 2008 and Rule 63 of
the Rules, 2008.

29. Let such an order be passed in
accordance with law within a period of
three months from the date of receipt of
certified copy of this order.
----------
(2024) 1 ILRA 587
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.01.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 441 of 2021

Rakesh Kumar ...Appellant
Versus
State of U.P. & Ors. ...Respondents