P.D. Mulye, J.
1. This is a reference under Section 44(1) of the M.P. General Sales Tax Act, 1958, at the instance of the department whereby the following question has been referred to by the Sales Tax Tribunal (Board of Revenue, M.P., Gwalior) for the opinion of this Court:
Whether, in the facts and in the circumstances of the case, the Tribunal was justified in holding that once the first appeal had been decided, it was not possible for the assessing authority itself to reopen the case and reassess the dealer under Section 19 of the State Act, even though the question on which reassessment under Section 19(1) is proposed was not agitated or canvassed before the first appellate authority ?
2. The material facts, as stated in the statement of the case, giving rise to this reference may be stated in brief thus : The assessee, M/s. Khimji Vishramji & Co., deal in cotton bales and was assessed to sales tax under the Central Sales Tax Act, 1956, for the Diwali year 1967-68. Packing material in which cotton bales were packed was assessed to tax separately under the theory of implied sale. While iron hoops were assessed to tax at the rate of 3 per cent bardana was assessed at 10 per cent. An appeal against this order was preferred before the Deputy Commissioner of Sales Tax. The assessee's contention therein that there was no sale of packing material was rejected and it was held that there was an implied contract of the sale of packing materials and packing material was also liable to be taxed at the rate provided for such material. Thereafter the case was reopened under Section 19(1) of the M. B. General Sales Tax Act, 1958, on the grounds that iron hoops were liable to tax at the rate of 10 per cent. The dealer's contention that since first appeal has been decided, the case could not be reopened under Section 19(1) of the State Act, was rejected by the assessing authority, which observed that this point was not decided in the first appeal. Iron hoops were now assessed to tax at 10 per cent. An appeal against this order was preferred before the Additional Deputy Commissioner of Sales Tax. The appellate authority rejected the dealer's contention that the case could not be reopened under Section 19(1) of the State Act. The assessee has preferred second appeal before the Tribunal under Section 38(2) of the State Act read with Section 9(2) of the Central Act.
3. The assessee's contention that since the order passed by the Deputy Commissioner of Sales Tax had become final, it was not competent to reopen the assessment under Section 19(1) of the State Act, was upheld by the Tribunal and the order of reassessment was set aside. Hence this reference.
4. After hearing the learned counsel and after going through the records we are of the opinion that this reference has to be answered in favour of the department as the question referred to has already been decided by the two Division Bench decisions of this Court reported in (1984) 17 VKN 417 (Commissioner of Sales Tax, M.P. v. Tulsiram Bhagwandas, Gwalior) and page 431 (Commissioner of Sales Tax, M.P. v. Shah Jadhavji Kanji & Co.) (printed infra). In view of this decision the learned counsel for the assessee-respondent, in fairness, submitted that the question referred to has to be answered in favour of the department.
5. In the result this reference is accepted and the reference is answered in favour of the department and against the assessee. No order as to costs.