M/S Samsung India Electronics Private Limited Vs Assistant Commissioner, Commercial Taxes Department

All these sales tax revision petitions were preferred aggrieved from order dated 10.05.2023 in appeal Nos. 2019/816/Jaipur, 2019/817/Jaipur, 2019/818/Jaipur, 2019/819/ Jaipur, 2019/820/ Jaipur, 2019/820/Jaipur by the Rajasthan Tax Boards, Ajmer (hereinafter referred to as 'the Tax Board'), wherein

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the Tax Board has dismissed the appeal and affirmed the order dated 30.03.2019 passed by the Appellate Authority-II Commercial Taxes, Jaipur.

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Learned counsel for the petitioners submits that the Tax Assessing Officer while invoking the provision of Rule 12 of the Rajasthan Tax on Entry of Goods into Local Area Rules, 1999 (hereinafter referred as ‘the Rules of 1999’) has passed an order of Tax Assessment for entry tax and levied not only entry tax and interest but also penalty. He submits that the goods for which the tax was levied was not consumed in the State of Rajasthan and same were transferred to other States and accordingly levy of entry tax is not warranted. He further submits that the Tax Assessing Officer considering that the transfer of goods was effected beyond the period of six months has levied the entry tax, interest and also penalty which is contrary to basic provision of the Rajasthan Tax on Entry of Goods into Local Areas Act, 1999 (for short 'the Act of 1999'). He also submits that the vires of rule was challenged by the petitioner before the Division Bench of this Hon’ble Court by filing D.B. Civil Writ Petition No.16922/2015 and same is pending before the Division Bench of this Hon’ble Court. At last, he submitted that the Tax Board has failed to consider that no rule can be framed contrary to the intention of main act but herein a limit of six months was prescribed under the Rules and same is contrary to the provision of the Act. He suggested substantial questions of law in para No.4 and submitted that these revision petitions be admitted on substantial questions of law as suggested in para 4.

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Aforesaid contentions were opposed by learned Additional Government counsel and he submitted that from concurrent findings of three authorities, the instant revision petitions are filed and no substantial question of law is made out from the grounds raised by the petitioners.

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Heard learned counsel for the parties and perused the material placed on record.

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A perusal of facts indicated that on 03.02.2015 when the premises of petitioner company were surveyed by the Commercial Tax Department then it came to the notice of Commercial Tax Department that certain goods were imported in Rajasthan and when asked about physical availability of stock then it was informed that the stocks were transferred to other States but after six months. The Rules of 1999 were promulgated under the Entry Tax Act, 1999. Rule 12 of the Rules of 1999 provides for exemption and deduction. The outer limit under sub-rule (3) is prescribed as six months. It means if any goods are purchased or received from outside the local area and subsequently sent out of the local area otherwise a by way of sale than tax shall be deducted provided that the goods are sent out of local area within a period of six months from date of entry of goods into the local area and the entries are made in the stock register in the manner as prescribed under Rules.

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Herein, the admission of facts clearly indicates that the goods were transferred or sent out of local area after a period of six months. In case, any goods imported in local area and are sent out of local area after a period of six months then the provision of

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exemption and deduction is not applicable under Section 12(3) of the Rules of 1999.

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The Tax Assessing Authority after considering the submissions and opportunity of hearing has levied entry tax, interest and penalty and raised a demand from present petitioner. Aggrieved from the order of assessment an appeal was filed before the Appellate Authority-II, Commercial Taxes, Jaipur but same was dismissed. Aggrieved from the dismissal of appeal, an appeal is filed before the Rajasthan Tax Board, Ajmer and same was also dismissed on 10.05.2023. Now the present revision petitions are before us.

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The instant revision petitions are preferred by the petitioner after concurrent finding by three authorities. A revision petition can only be filed on substantial question of law and it is not permissible for revisional Court to interfere in findings of fact. The scope of revision is too narrow and revision is not a fact finding enquiry.

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In case of Chandrabhan (Deceased) Through LRs and others vs Saraswati and Others : 2022 SCC Online SC 1273 while considering the provision of Section 100 of CPC, Hon’ble Supreme Court has explained substantial question of law as debatable and not previously settled by law of land or not a mere question of law. A question of law having a material bearing on the decision of a case will be a substantial question of law, if it is not covered by any specific provision of law or settled legal principles emerging from binding precedents. A substantial question of law will also arise in a contrary situation, where the

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legal position is clear either on account of provision of law or binding precedents but the court below has decided the matter, either ignoring or acting contrary to such principle. The substantial question of law arises because the decision of court below was rendered on a material question, violated the settled position of law.

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The definition of substantial question of law was also considered by Hon’ble Supreme Court in case of M.Janardhana Rao Vs. Joint Commissioner of Income Tax (Appeal (Civil) No.4232/2003 order dated 28.01.2005) reported as AIR 2005 SC 1309, wherein a reliance has been placed in case of Sir Chunilal V. Mehta & Sons. Ltd. Vs. Century Spinning and Manufacturing Co. Ltd . : AIR 1962 SC 1314 and Hon’ble Supreme Court laid down the following test to determine whether substantial question of law is involved. The test are:

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(i) Whether directly or indirectly it affects substantial rights of the parties, or;

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(ii) The question is or general public importance, or; (iii) Whether it is an open question in the sense that issue is not settled by pronouncement of this court or Privy Council or by the federal court or;

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(iv) The issue is not free from difficulty, and

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(v) It calls for a discussion for alternative view.

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A perusal of contention raised by learned counsel clearly indicates that the petitioners are basically aggrieved from provision under Rule 12(3) of the Rules of 1999 wherein an outer limit of six months for export from local area is prescribed. A revision petition cannot be used to challenge the vires of the rule

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and the petitioner is not at liberty to contend that the rule is ultra vires to the main act as main act has not prescribed any outer limit for export of goods from local area which was earlier imported by the petitioner on pretext to sell but same has not been sold in local area.

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Herein, the vires of rule has already been challenged by filing D.B. Civil Writ Petition No.16922/2015 and unless the rule is declared as ultra vires or contrary to intention of main Entry Tax Act 1999, no substantial question of law exists in the instant revision petitions.

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Having considered the above, no substantial question of law arises from the grounds raised by the petitioner, therefore, these revision petitions are liable to be dismissed.

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A request was also made during the course of arguments that permission of revival be granted to the petitioners in case the aforementioned D.B. Civil Writ Petition is decided in favour of petitioner.

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The revival will depend upon several circumstances and we cannot permit a blanket revival permission but certainly the petitioner is at liberty to pray for the same after successful in D.B. Civil Writ Petition No.16922/2015.

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In view of aforementioned, all these six Sales Tax Revision Petitions are hereby dismissed with pending applications, if any.

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(ASHOK KUMAR JAIN),J

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M/S Samsung India Electronics Private Limited v. Assistant Commissioner, Commercial Taxes Department

Case brief

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M/S Samsung India Electronics Private Limited v. Assistant Commissioner, Commercial Taxes Department

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