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Deputy Commissioner of Agricultural Income-tax and Sales Tax Vs. M.D. Philip - Court Judgment

LegalCrystal Citation
Subject Sales Tax
CourtKerala High Court
Decided On
Case Number Tax Revision Case No. 90 of 1959
Judge
Reported in[1961]12STC687(Ker)
AppellantDeputy Commissioner of Agricultural Income-tax and Sales Tax
RespondentM.D. Philip
Appellant AdvocateThe Government Pleader
Respondent Advocate S. Balakrishna Pillai and; C.M. Ramachandra Menon, Advs.
Disposition Petition dismissed
Cases ReferredSecretary of State v. Allu Jagannadham A.I.R.
Excerpt:
.....also urged that the dealer is bound by the orderi due to the dealer's failure of not appealing to the appellate tribunal when the order was made. for it is well settled that where the remand order be not appealable, the party aggrieved would not be precluded, in the appeal later filed, from challenging before the higher appellate authority the correctness of the conclusions arrived at in the earlier order. at best, the part of the order against him may be treated as a finding, and we think that such a finding, where no appeal can be filed, does not become final, so as to preclude its being reversed by higher appellate authority, when an appeal is properly filed......dealer nor the last dealer; that(ii) if the dealer does not prove that in relation to the entire sales turnover, the question should then be considered as to which portion of the sales turnover he be assessable as the first dealer, and which as the last dealer; that(iii) if the books be not acceptable and an estimate be warranted, the assessing authority should call upon the dealer to show cause why he should not be assessed as the first dealer or the last dealer; and that(iv) should the assessing authority find the conditions of the licence taken, to have been contravened, the assessment should be made under section 3(1) read with section 7.3. against the aforesaid order, the state has filed this revision petition, claiming that any examination of the assessee's account books, cannot.....
Judgment:

M.A. Ansari, C.J.

1. For the assessment year 1951-52, the dealer had furnished returns, but the assessing officer has rejected them on the ground that the dealer had given in his application for registration, the turnover of Rs. 77,803-4-3, and that was far in excess of what had been mentioned in the returns for the aforesaid year. In the appeal before the Appellate Assistant Commissioner, the dealer had taken the ground of his being liable under the notification to pay only the tax on the first and the last sales within the State, and the appellate authority had remanded the case for fresh disposal after setting aside the assessment. While so doing, the appellate authority had made the following observations:-

There is also great disparity between the turnover disclosed as per the accounts and those given by him in the application for licence for the period 1952-53. These facts clearly show that the book produced before the officer was cooked up subsequently and cannot therefore be accepted. The turnover fixed by the officer is also the same as that shown by the appellant as the turnover for 1951-52 in the licence application filed for 1952-53. The estimate will therefore stand.

2. After the remand, the Sales Tax Officer had made fresh inquiries concerning the exemptions claimed by the dealer, assessed Rs. 13,233-9-0 to be the amount of the sales claimed under the exemptions, and found Rs. 64,569-13-3 to be the turnover after the aforesaid deduction, and to be liable to pay the tax. The dealer went in appeal to the Appellate Assistant Commissioner, but failed. Therefore, he appealed to the Sales Tax Appellate Tribunal, which has ordered that:-

(i) The Sales Tax Officer is to examine the account books afresh, and, if the books be acceptable, the dealer is to get the opportunity to prove that he is neither the first dealer nor the last dealer; that

(ii) If the dealer does not prove that in relation to the entire sales turnover, the question should then be considered as to which portion of the sales turnover he be assessable as the first dealer, and which as the last dealer; that

(iii) If the books be not acceptable and an estimate be warranted, the assessing authority should call upon the dealer to show cause why he should not be assessed as the first dealer or the last dealer; and that

(iv) Should the assessing authority find the conditions of the licence taken, to have been contravened, the assessment should be made under Section 3(1) read with Section 7.

3. Against the aforesaid order, the State has filed this revision petition, claiming that any examination of the assessee's account books, cannot again be ordered, as the earlier order of the Appellate Assistant Commissioner had settled the account books not to be reliable, and that was passed on 18th October, 1954. It is also urged that the dealer is bound by the orderi due to the dealer's failure of not appealing to the Appellate Tribunal when the order was made. The learned Government Pleader has argued that orders of remand not appealed against, carry finality, and questions settled by them cannot ' be agitated afresh in subsequent proceedings. In support of this view, he has relied on Sunder Ahir v. Phuljkaria A.I.R. 1957 Pat. 534 wherein it was held that the proper construction of the remand order was that the question of plaintiff's title was finally determined by the remand order, and the suit was remanded only on the question of maintainability of the plaintiff's suit. It was further held there that in that view of the matter, the decision of the appellate court before remand on other questions, must be deemed to have been finally decided by the remand order. We, however, feel that this petition has no force; for it is well settled that where the remand order be not appealable, the party aggrieved would not be precluded, in the appeal later filed, from challenging before the higher appellate authority the correctness of the conclusions arrived at in the earlier order. The learned Government Pleader has very fairly drawn our attention to Secretary of State v. Allu Jagannadham A.I.R. 1941 Mad. 530 wherein the aforesaid proposition has been laid. Therefore, the issue arising for adjudication in this revision petition is whether the Appellate Tribunal, which is the higher appellate authority, is precluded by the passage in the earlier remand order by the Appellate Assistant Commissioner, from again directing the examination of the account books. It is clear that if the dealer was bound to appeal earlier, the Tribunal would be precluded. On the other hand, should we come to the conclusion that the passage quoted earlier formed but one of the reasons for making the remand order and the dealer was not bound to appeal, the position would be different. In this connection, we would quote Section 14(4) of the General Sales Tax Act, 1125, which reads as follows :

Every order passed in appeal under this section shall, subject to the provisions of Sections 15 to 15-C, be final.

Section 15-A reads as follows :-

(1) Any assessee objecting to an order relating to assessment passed-

(i) by the Appellate Authority under Section 14, or

* * * *may, if the assessee has not preferred an application for revision of the order under Section 15, Sub-section (1), or under Sub-section (2) of that section, as the case may be, appeal to the Appellate Tribunal within sixty days from the date on which the order was communicated to the assessee.* * * *

4. As an appeal by the dealer lies only against the order that is against the dealer, and not for reasons given in the order, the dealer could not have appealed against the earlier order. The order of 18th October, 1954, it may be recalled, had set aside the assessment, and had remanded the case for fresh disposal. The dealer obviously could not have appealed, because there was no assessment order, against which he could have appealed. In these circumstances, we feel that the assessee could not be said to have let any decision in the order of remand become final by letting his right of appeal lapsed. At best, the part of the order against him may be treated as a finding, and we think that such a finding, where no appeal can be filed, does not become final, so as to preclude its being reversed by higher appellate authority, when an appeal is properly filed. For these reasons, we feel the revision petition has no force, and it is dismissed. The parties will bear their costs.


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