Allahabad High Court
THE COMMISSIONER COMMERCIAL TAX U.P. LUCKNOWversusS/S AJAY KUMAR TIWARI AND SONS
- Decided
- Bench
- PIYUSH AGRAWAL
Holding
The Tribunal’s finding in favour of the dealer is upheld; the dealer is entitled to a refund of excess tax without needing to prove that the tax burden was not passed on to the consumer.
Summary
The Commissioner of Commercial Tax, Uttar Pradesh filed revisions under Section 6 of the UP VAT Act against S/S Ajay Kumar Tiwari & Sons challenging an order of the Commercial Tax Tribunal that had allowed a refund of excess tax deposited by the dealer. The revision raised the legal question whether a dealer can claim a refund without proving that the tax burden was not passed on to the consumer, relying on Supreme Court decisions in Mafat Lal Industries Ltd. v. Union of India and Sahkari Khand Udyog Mandal Ltd. v. Commissioner, Central Excise. The High Court examined the Tribunal’s findings, noting that the Tribunal, as the final fact‑finder, had recorded a concurrent finding in favour of the opposite party. Finding no error in the Tribunal’s reasoning, the Court dismissed both revisions. Consequently, the dealer’s right to refund was upheld without the need to establish the non‑pass‑through of tax burden.
Issues considered
- Whether a dealer is entitled to a refund of excess VAT deposited without establishing that the tax burden was not passed on to the consumer, in view of the Supreme Court judgments in Mafat Lal Industries Ltd. v. Union of India and Sahkari Khand Udyog Mandal Ltd. v. Commissioner, Central Excise.
Legislation cited
- Uttar Pradesh Value Added Tax Act — s. 6
Subjects
- VAT
- refund
- excess tax
- tax burden
- commercial tax
- revision
- Section 6
- Supreme Court precedent
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
SALES/TRADE TAX REVISION No. - 552 of 2017
The Commissioner Commercial Tax U.P. Lucknow
.....Revisionist(s)
Versus
S/S Ajay Kumar Tiwari And Sons
.....Opposite
Party(s)
Counsel for Revisionist(s) : S.C.
Counsel for Opposite Party(s) :
With
Sales / Trade Tax Revision No. 553/2017
Court No. - 7
HON'BLE PIYUSH AGRAWAL, J.
1. Heard Shri B.K. Pandey, learned ACSC for the revisionist and learned counsel for
the opposite party.
2. The issue involved in both the revisions are similar, therefore, with the consent of
the parties, both the revisions are decided by common order treating STRE No.
552/2017 as leading case.
3. The instant revisions have been filed against the impugned order dated 8.8.2017
passed by the Commercial Tax Tribunal in Second Appeal Nos. 80/2017 (A.Y. 2009-
10) and 81/2017 (A.Y. 2010-11), under Section 6 of UP VAT Act.
4 . The above-noted revision has been filed on the following question of law:-
"Whether in view of the decision of Hon'ble Apex Court in the case of M/s
Mafat Lal Industries Ltd. Vs.Union of India 1998 -II (STC -467) (SC) as
well as in the case of M/s Sahkari Khand Udyog mandal Ltd. Vs.
Commissioner, Central Excise Hon'ble Supreme Court 3 JB -42005 (05-
05-09-RC-567) the dealer opposite party is entitled to the refund of excess
amount deposited by him without establishing the fact that the burden of
tax was not passed on to the consumer?"
5. After hearing learned counsel for the parties and perusal of the records, this Court
finds that the Tribunal, being the last court of fact & law, has recorded a concurrent
finding of fact in favour of the opposite party, which does not call for any interference
by this Court.
STRE No. 552 of 2017
2
6. In view of the aforesaid facts and circumstances of the case, both the revisions are
dismissed.
7. The question of law is decided in favour of the opposite party and against the
revisionist.
(Piyush Agrawal,J.)
September 17, 2026
Rahul Dwivedi/-
Digitally signed by :-
RAHUL DWIVEDI
High Court of Judicature at Allahabad
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