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Commissioner of Sales Tax Vs. Dwarika Das and Co. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberS.T.R. No. 700, 701 and 702 of 1978
Judge
Reported in[1980]45STC352(All)
AppellantCommissioner of Sales Tax
RespondentDwarika Das and Co.
Appellant AdvocateStanding Counsel
Respondent AdvocateJ.C. Bharatdwaj
DispositionPetition allowed
Excerpt:
- .....j.1. the common question of law that arises for consideration in these revisions is whether a recovery certificate issued by the assessing authority was an order against which an appeal lay under section 9 of the u.p. sales tax act. the assessment years involved are 1953-54, 1954-55 and 1955-56. the certificates were issued between 1959-60. why were the appeals filed in 1975 is not clear, but the appellate authority dismissed them on the finding that recovery certificates were only information and not orders; as such no appeal lay. in revision, the orders were set aside and the cases were remanded to the appellate authority to decide the claim of the assessee on merits. it was held that recovery certificates were in the nature of an order of execution and as appeal lay against any.....
Judgment:

R.M. Sahai, J.

1. The common question of law that arises for consideration in these revisions is whether a recovery certificate issued by the assessing authority was an order against which an appeal lay under Section 9 of the U.P. Sales Tax Act. The assessment years involved are 1953-54, 1954-55 and 1955-56. The certificates were issued between 1959-60. Why were the appeals filed in 1975 is not clear, but the appellate authority dismissed them on the finding that recovery certificates were only information and not orders; as such no appeal lay. In revision, the orders were set aside and the cases were remanded to the appellate authority to decide the claim of the assessee on merits. It was held that recovery certificates were in the nature of an order of execution and as appeal lay against any order made by the assessing authority the appeals were maintainable. The revising authority illustrated the maintainability of appeal against recovery certificates by taking an example that if recovery certificates were issued without assessment proceedings the assessee would be without any remedy and put to untold misery and humiliation.

2. None of the reasons of the revising authority are sound in law. The apprehension that recovery certificate may be issued without assessment proceedings is without foundation. And even assuming that such an unusual thing may happen, the assessee can always approach this Court under Article 226 of the Constitution of India. In any case, the remedy of appeal is a statutory remedy and not an inherent right. It has to be seen whether Section 9 of the Act permits filing of an appeal against recovery certificate. The section, before its amendment, ran as under:

Section 9. (1) Any dealer objecting to an order allowing or refusing an application for exemption certificate under Clause (b) of Sub-section (1) of Section 4...or to an order imposing a penalty under Sub-section (5) of Section 4-B or under Section 13-A or under Section 15-A or an order demanding security under Sub-section (3) of Section 4-B or under Sub-section (6) of Section 8-A or an order cancelling or amending a recognition certificate under Sub-section (4) of Section 4-B or to an assessment made under Section 7, 7-A, 7-B, 18 or 21, may within 30 days from the date of service of the copy of the order or notice of assessment, as the case may be, appeal to such authority as may be prescribed.

3. It specifically mentioned the orders against which appeal lay. No appeal was provided against recovery certificate and, therefore, the Additional Judge (Revisions) committed an error in holding that the appeal was maintainable. He obviously applied the amended Section 9. The learned counsel for the assessee strongly pleaded that appeals having been filed in 1975 the amended provision of Section 9 was applicable. Without deciding the question whether in respect of proceedings which were initiated prior to amendment the amended provision applied or not the order cannot be upheld as the appeal is not maintainable even under the amended Section 9, which reads as under:

Section 9. (1) Any dealer objecting to any order made by the assessing authority, other than an order mentioned in Section 10-A may, within thirty days from the date of service of the copy of the order, appeal to such authority as may be prescribed.

4. The question is whether a letter or information sent by the Sales Tax Officer to the Collector to realise the arrears as land revenue can be said to be an order against which appeal lay. The word 'order' has not been defined in the Act or the Rules. According to dictionary, it means a command. In Blacks Law Dictionary, it has been defined:

A mandate, precept, a command or direction authoritatively given.

In Civil Procedure Code, 'order' has been defined in Section 2 as:

'Order' means the formal expression of any decision of a civil court which is not a decree.

5. A recovery certificate is neither a formal expression of a decision nor a command or mandate; as such it cannot be considered to be an order. The analogy that it is in the nature of execution proceedings is not applicable. And even if it is so, the appeal would be under Section 9 only if it is held that it was an order. It is not the effect but the form of the order, which is determinative of the remedy of appeal. The view taken by the appellate authority, therefore, was correct.

6. In the result, these revisions succeed and are allowed. The order passed by the Additional Judge (Revisions) is set aside. The question of law raised by the Commissioner, Sales Tax, is decided by saying that no appeal lay against the recovery certificate. The Commissioner shall be entitled to its costs, which is assessed at Rs. 200.


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