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Commissioner of Sales Tax Vs. Babu Lal Parmanand - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberSales Tax Revision No. 89 of 1980
Judge
Reported in[1982]49STC181(All)
AppellantCommissioner of Sales Tax
RespondentBabu Lal Parmanand
Appellant AdvocateStanding Counsel
Respondent AdvocateBharatji Agarwal, Adv.
DispositionRevision allowed
Excerpt:
.....this court for its opinion :whether, having regard to the language of the remand order made by the appellate authority, the assessing authority was competent to examine the case afresh and to assess tax on enhanced turnover in the reassessment proceedings after remand 10. ultimately the case was referred to the full bench because there was a conflict of opinion on this question in some decisions of this court and the question referred to the full bench was :where the order of assessment is set aside by the appellate or revising authority which remands the case to the assessing authority with certain directions for making a fresh assessment, has the assessing authority subject to carrying out such directions the same power as it had originally in making the assessment under section 7 of..........sales at rs. 15,745. during the course of assessment proceedings on a scrutiny of the accounts the sales tax officer found that in respect of purchases made by it as purchasing agent for ex- u.p. principals, it had used its own bardana, the value of which was rs. 34,051.73. in the opinion of the sales tax officer these sales of bardana were liable to be treated as inter-state sales. the contention of the assessee was that since it had made supplies of bardana from its own account, the same could not be treated as sales liable to tax under the central act. that argument was repelled and the aforesaid amount was brought to tax. in respect of certain other inter-state sales of foodgrains to the extent of rs. 7,555, the assessee's claim for concessional rate of tax was not accepted.2. the.....
Judgment:

R.R. Rastogi, J.

1. This is the Commissioner's revision under Section 11(1) of the U.P Sales Tax Act. The respondent-assessee, a partnership firm, carried on business in foodgrains, oil-seeds and bardana at Mauranipur, Jhansi. In its assessment to tax under the Central Sales Tax Act for the assessment year 1961-62 the assessee had disclosed inter-State sales at Rs. 15,745. During the course of assessment proceedings on a scrutiny of the accounts the Sales Tax Officer found that in respect of purchases made by it as purchasing agent for ex- U.P. principals, it had used its own bardana, the value of which was Rs. 34,051.73. In the opinion of the Sales Tax Officer these sales of bardana were liable to be treated as inter-State sales. The contention of the assessee was that since it had made supplies of bardana from its own account, the same could not be treated as sales liable to tax under the Central Act. That argument was repelled and the aforesaid amount was brought to tax. In respect of certain other inter-State sales of foodgrains to the extent of Rs. 7,555, the assessee's claim for concessional rate of tax was not accepted.

2. The assessee filed an appeal and disputed the levy of tax on the value of bardana, that is, Rs. 34,051.73, and denial of concessional rate on sales of Rs. 7,555. The appellate authority, by its order dated 6th August, 1965, agreed with the assessing authority with regard to the taxability of bardana but as -regards the assessee's claim of concessional rate of tax in respect of sales amounting to Rs. 7,555, held that the Sales Tax Officer should have allowed the assessee an opportunity to show that the purchasing dealers to whom those sales had been made were registered dealers on the date when the purchases were made by them and for that purpose remanded the case with a direction to the Sales Tax Officer to give an opportunity to the assessee to establish that the purchasers were registered dealers on the date when these sales were made to them.

3. After remand, when the case was taken up by the Sales Tax Officer, again a contention was urged on behalf of the assessee that the alleged sales of bardana could not be treated as inter-State sales. The Sales Tax Officer repelled this contention on the ground that the appellate order in this behalf had become final. The assessee's claim in regard to the sales of Rs. 7,555 was accepted.

4. The assessee filed an appeal and contended before the appellate court that the outturn of Rs. 34,051.73 in respect of bardana had been wrongly subjected to tax. The Assistant Commissioner (Judicial) repelled that contention on the ground that inasmuch as the assessee did not file any revision against the previous order of the appellate authority, it was not open for it to reagitate this point.

5. Being aggrieved, the assessee took up the matter in revision before the Additional Judge (Revisions). The learned Additional Judge (Revisions) without referring to this aspect of the case, accepted the assessee's contention and held that the disputed turnover could not be subjected to tax under the Central Act. Aggrieved, the department has filed the present revision.

6. It was submitted before me by the learned standing counsel that the view taken by the Additional Judge (Revisions) was erroneous. He could not have allowed the assessee to reagitate this point inasmuch as the assessee had not filed any revision against the appellate order dated 6th August, 1965, in which a clear finding had been recorded that the disputed turnover was liable to be taxed under the Central Act. When that finding was allowed to become final, the assessee could not have been allowed to reagitate this question subsequently. On the other hand, on behalf of the assessee, reliance has been placed on a Full Bench decision of this Court in Ram Dayal Harbilas v. Commissioner of Sales Tax 1979 UPTC 999 (FB).

7. In my opinion, there is considerable merit in what has been submitted by the learned standing counsel. As has been stated above, the finding of the Sales Tax Officer that the disputed turnover was liable to be taxed under the Central Act was confirmed by the appellate authority and the case was remanded only for decision in so far as the assessee's claim of concessional rate of tax in respect of sales of foodgrains of Rs. 7,555 made to certain registered dealers was concerned. The assessee's claim had been negatived on the ground that it had failed to prove that at the time of those sales those purchasing dealers were registered dealers. The appellate court accepted the assessee's contention that the assessee should have been given an opportunity to establish this fact and for that purpose only the case was remanded to the Sales Tax Officer. In other words, it was not a case where the assessment was set aside as a whole and the case was remanded for making a fresh assessment, but it was a case where a part of the assessment was confirmed and only in regard to a certain question involved the matter was remanded with a certain direction. After that remand the Sales Tax Officer was required only to decide that part of the case keeping in view the directions given by the appellate court. No other question in respect of which the order of the appellate authority had been allowed to become final could have been allowed to be reagitated after remand. On this view the Sales Tax Officer and the Assistant Commissioner (Judicial) were right in repelling the attempt of the assessee to reagitate this point and unfortunately the Additional Judge (Revisions) gave a finding on it on merits without keeping this aspect in view.

8. The decision of the Full Bench in Ram Dayal Harbilas case 1979 UPTC 999 (FB) does not help the assessee in this behalf. In that case on the assessee's appeal against the assessment order, the Judge (Appeals), Sales Tax, Allahabad, set aside the assessment and remanded the case for reassessment after fresh enquiries and in the light of the observations made by him. While the assessment proceedings as a result of the remand order were pending certain material came to the notice of the assessing authority which indicated that quite a substantial quantity of purchases had been suppressed by the assessee and the assessing authority acting on the basis of the material collected prior to the remand order as also the material procured subsequent to it, enhanced the taxable turnover of the dealer which was very much beyond the enhancement which had been made in the original assessment. The dealer questioned this fresh assessment made in pursuance of the remand order on the ground that after remand it was not open to the assessing authority to take any fresh material into consideration and it should have confined itself to the directions given in the remand order. This contention did not find favour with the appellate authority. However, the appellate authority accepted the dealer's contention that proper opportunity had not been afforded to the assessee for being heard on the question of import of vegetable oil from outside the State and accordingly the assessment was set aside and the matter was remanded for making assessment afresh.

9. Not being satisfied the dealer filed a revision which failed and then at his instance the following question was referred to this Court for its opinion :

Whether, having regard to the language of the remand order made by the appellate authority, the assessing authority was competent to examine the case afresh and to assess tax on enhanced turnover in the reassessment proceedings after remand

10. Ultimately the case was referred to the Full Bench because there was a conflict of opinion on this question in some decisions of this Court and the question referred to the Full Bench was :

Where the order of assessment is set aside by the appellate or revising authority which remands the case to the assessing authority with certain directions for making a fresh assessment, has the assessing authority subject to carrying out such directions the same power as it had originally in making the assessment under Section 7 of the U.P. Sales Tax Act

11. The answer given to this question by the Full Bench is that where an order of assessment is set aside by the appellate authority which remands the case to the assessing authority with certain directions for making a fresh assessment, the assessing authority has, subject to carrying out such directions, the same power as it originally had in making the assessment under Section 7 of the U.P. Sales Tax Act. But where the order of assessment is set aside by a revisional authority under Section 10 of the U.P. Sales Tax Act, the jurisdiction of the Sales Tax Officer to make the assessment can be circumscribed by the specific directions given by the revisional authority in that regard. If under the remand order made by the revising authority, the jurisdiction of the Sales Tax Officer to make the assessment has been limited, the Sales Tax Officer will have the jurisdiction to make the assessment only to the extent to which he has been permitted to do SO under the orders of the revising authority.

12. It would be seen that the Full Bench has addressed itself to a case where assessment had been set aside by the appellate authority and had been remanded for being made afresh. The question was about the powers of the Sales Tax Officer while making a fresh assessment after remand. After this decision it is established that if an assessment has been set aside by the appellate authority and has been remanded with a direction for making a fresh assessment, the assessing authority, subject to carrying out such directions as given by the appellate authority has the same powers to make assessment as it originally had in making an assessment under Section 7 of the Act. However, where an assessment has been set aside and remanded for making it afresh by a revising authority, the jurisdiction of the assessing authority is confined to the direction given by the revising authority. In the present case, as noted above, the assessment had not been set aside and the case had not been remanded for making a fresh assessment. A part of the assessment was confirmed while in regard to a particular question the case was remanded with a direction to decide it afresh after giving an opportunity to the assessee to establish its case. Therefore, after remand the jurisdiction of the assessing authority was confined only tothe subject-matter which was remanded to it. Since the assessee did not challenge the order of the appellate authority by way of a revision, that order became final and that being so the assessee could not have reagitated that part of the case which had become final, in proceedings after remand. The Sales Tax Officer as well as the appellate authority, therefore, were right in repelling the attempt of the assessee to reagitate the question of the liability to tax under the Central Act of the disputed turnover while the Additional Judge (Revisions) erred in law in taking a contrary view.

13. The revision hence succeeds and is allowed. The Commissioner is entitled to costs which are assessed at Rs. 200.


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