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Commissioner of Sales Tax Vs. Sterling Machine Tools - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberSales Tax Revision No. 449 of 1982
Judge
Reported in[1983]53STC90(All)
AppellantCommissioner of Sales Tax
RespondentSterling Machine Tools
Appellant AdvocateStanding Counsel
Respondent AdvocateBharatji Agrawal, Adv.
DispositionPetition dismissed
Excerpt:
- - under section 10-a(b) any order or action under section 13 or under sub-section (1) of section 13-a or under sub-section (4) of section 28-a or under sub-section (2) of section 28-c has been made non-appealable as well as non-revisable. 13. the sales tax officer, mobile squad, will therefore, deemed to be an assessing authority by virtue of rule 5(4). 14. it is well-settled that a deeming clause will have to be given its full effect......circle or circles.12. sub-rule (4) of rule 5 provides as follows :(4) for the purposes of these rules, a sales tax officer empowered or authorised under sub-section (8) of section 8 or section 13 or section 13-a, or posted at a check post or barrier established under section 28, shall be deemed to be an assessing authority in the circle in which his office is situated.13. the sales tax officer, mobile squad, will therefore, deemed to be an assessing authority by virtue of rule 5(4).14. it is well-settled that a deeming clause will have to be given its full effect. when the sales tax officer, mobile squad, demanded security under section 13-a(6), he must be deemed to have made an order and since the order was made, an appeal would lie under section 9(1) of the act.15. i am unable to.....
Judgment:

B.N. Sapru, J.

1. This is a revision by the Commissioner of Sales Tax. The Sales Tax Officer, Mobile Squad, on 12th December, 1980, checked truck No. UPI 3468 and found that it was carrying 32 engines, 32 pumps and two couplings. The goods receipt was issued by the transport company, Southern Eastern Railway. The, way-bill in which the details of the goods were mentioned, was supposed to be of 12th December, 1980, but the date in the bills and the receipt read as 16th December, 1980. The Sales Tax Officer, in-charge of the squad, brought the truck back to the premises of the dealer and handed it over to the custody of the watchman. The stock register was signed and the goods found in the truck were found to have been entered in the account books under the date 12th December, 1980.

2. The Sales Tax Officer, S. I. B., being of the opinion that it was a case where a penalty was likely to be imposed under Section 15-A(o), directed the assessee to deposit an amount of Rs. 28,560 for the release of the goods. This order was made by the Sales Tax Officer, S.I.B., under Section 13-A(6) of the U.P. Sales Tax Act.

3. The assessee being aggrieved by the amount, filed an appeal. The Assistant Commissioner (Judicial) reduced the amount of security to Rs. 10,000.

4. Both the assessee and the Commissioner filed appeals. It was contended on behalf of the Commissioner that no appeal lay under Section 9 of the Act to the Assistant Commissioner (Judicial) from an order under Section 13-A(6) and it was further the case of the Commissioner that even if an appeal lay, the amount of security demanded should not have been reduced by the Assistant Commissioner (Judicial).

5. The assessee contended that the order requiring security should not have been made for the release of the goods.

6. The Tribunal has held that an appeal lay to the Assistant Commissioner (Judicial) from an order made by the Sales Tax Officer, S. I. B., under Section 13-A(6). It was further of the view that the amount of security demanded by the Assistant Commissioner (Judicial) was correct. With these findings both the appeals by the Commissioner and the assessee were dismissed by the Tribunal.

7. Aggrieved, the Commissioner has filed this revision. The learned standing counsel has argued that an order under Section 13-A(6) is not appealable. He submits that an order demanding security under Section 13-A(6) is not really an order but the final order is passed under Section 13-A(6) when the matter is adjudicated upon by the assessing authority.

8. Section 10-A provides for cases where no appeal or revision will lie. Under Section 10-A(b) any order or action under Section 13 or under Sub-section (1) of Section 13-A or under Sub-section (4) of Section 28-A or under Sub-section (2) of Section 28-C has been made non-appealable as well as non-revisable.

9. Section 9(1) provides that any dealer or any other person aggrieved by any order made by the assessing authority other than an order mentioned in Section 10-A may appeal to such authority as may be prescribed.

10. Under Section 2(a) an assessing authority has been defined as any person appointed by the State Government or the Commissioner of Sales Tax to perform all or any of the functions of the assessing authority under the Act.

11. Under Rule 3 of the U. P. Sales Tax Rules, there is power to create ranges and circles. Rule 5 deals with the powers of assessment and matters incidental thereto. Under Sub-rule (3) of Rule 5 it is provided as follows :

(3) Notwithstanding anything contained in these Rules, the State Government may authorise any officer to exercise all or any of the powers mentioned in Sections 13 and 13-A within the whole of Uttar Pradesh or within one or more than one circle, as may be specified in the order. The officer so authorised shall have concurrent jurisdiction with the Sales Tax Officers in the State, or, as the case may be, with the Sales Tax Officer or Sales Tax Officers of the said circle or circles.

12. Sub-rule (4) of Rule 5 provides as follows :

(4) For the purposes of these Rules, a Sales Tax Officer empowered or authorised under Sub-section (8) of Section 8 or Section 13 or Section 13-A, or posted at a check post or barrier established under Section 28, shall be deemed to be an assessing authority in the circle in which his office is situated.

13. The Sales Tax Officer, Mobile Squad, will therefore, deemed to be an assessing authority by virtue of Rule 5(4).

14. It is well-settled that a deeming clause will have to be given its full effect. When the Sales Tax Officer, Mobile Squad, demanded security under Section 13-A(6), he must be deemed to have made an order and since the order was made, an appeal would lie under Section 9(1) of the Act.

15. I am unable to accept the argument of the learned standing counsel that no order is contemplated by Section 13-A(6) of the Act.

16. The release of the seized goods can be ordered only under Section 13-A(6) including the proviso thereto. In cases coming under the proviso, the release may be without security but, in other cases, it has to be on security. The officer making the order under Section 13-A(6) has to determine whether any penalty is liable to be imposed on the seized goods and what is the quantum of the penalty likely to be imposed. He then makes the order requiring the security to be furnished and it is only on the furnishing of the security that the goods will be released.

17. The legislative history also supports the view that an order under Section 13-A(6) is open to appeal. Initially Section 10-A was introduced with effect from 1st October, 1970, by the U.P. Sales Tax (Amendment) Ordinance, 1970 (U.P. Ordinance No. 20 of 197-0), dated 30th September, 1970. Section 10-A(c) provided that no appeal or revision shall lie against an order under Section 13 or Section 13-A. The section was substituted by the U.P. Sales Tax (Amendment) Act, 1970 (U.P. Act No. 3 of 1971). The provision barring an appeal or revision was maintained by virtue of Sub-clause (b) of the section. This was followed by the U.P. Sales Tax (Amendment) Act, 1973 (U.P. Act No. 1 of 1973), which provided that no appeal or revision would lie against an order or action under Section 13 or under Sub-section (1) of Section 13-A or under Sub-section (4) of Section 28-A or under Sub-section (2) of Section 28-C.

18. The above history indicates that initially the legislature had barred an appeal against any proceedings under Section 13-A. Subsequently, the legislature has permitted appeals in cases other than the cases where action is taken under Sub-section (1) of Section 13-A. In this view of the matter, the Tribunal was right in holding that an appeal lay to the Assistant Commissioner (Judicial).

19. As regards the reduction in the amount of security demanded, the Tribunal was of the view that it was doubtful that the penalty could be imposed because the authorities have not examined the accounts of the dealer immediately or even on September 13 and 14 and entries of all the goods were found to have been entered in the books of the dealer. In view of the finding, the Tribunal upheld the order of the Assistant Commissioner (Judicial). The learned standing counsel is unable to show any infirmity in the order of the Tribunal in regard to the security demanded.

20. In the result, the revision is dismissed with costs which are assessed at Rs. 200.


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