Krishan Lal Jugmander Dass v. Sales Tax officer — 1963 DIGILAW 185 (ALL)

JUDGMENT S.C. Manchanda, J. - The disposal of this writ petition will also govern the disposal of Civil Misc. Writ No. 1297 of 1963. This is a writ petition under Article 226 of the Constitution directed against the penalty notices and recovery proceedings pursuant to an order passed under Rule 23 of the U.P. Sales Tax Rules (hereinafter referred to as the Rules) dated the 13th of January 1961, whereby a demand for Rs. 17,289/- was raised. The prayers is for an appropriate writ quashing the recovery proceedings as well as the penalty notice dated, the 21st of March, 1963, under Section 15(a) of the Act by and for the quashing of the order under Rule 23 dated the 30th of January, 1961. The latter prayer was permitted to be added notwithstanding an objection raised by the opposite party. 2. The facts leading up to this writ petition are these. The petitioner is a registered partnership firm and carries on business of commission agency in food grains, edible oil etc. The relevant assessment year is 1956-57. Food grains were not liable to sales tax till the financial year 1955-56. They were made liable to sales tax with effect from the 31st of March, 1956, i.e. for the assessment year 1956-57, vide notification No. ST-6068-S. By a subsequent Notification dated, the 30th of September, 1956, in exercise of the powers conferred by Section 4 of the U.P. Sales Tax Act, and in supersession of the Notification dated the 31st March, 1956, it was ordered that with effect from October, 1956, the provisions of Section 3 of the said Act shall not apply to the sales of food grains on condition that the dealer obtains an exemption certificate from the assessing authority on the payment of annual fee mentioned therein. Pursuant to that notification the petitioner firm made an application dated, 14th of December, 1956, for exemption in the prescribed form to the Sales Tax Officer, Saharanpur, and also deposited in due course a sum of Rs. 1,461/- towards the exemption fee for the relevant assessment year, 1956-57. The said Sales Tax Officer on the 6th of October, 1959, passed on exemption order under Rule 20B of the Rules, framed under the said Act. In the final exemption order the petitioners turnover in respect of the food-grains was determined at Rs. 12,00,000/- and as that turnover was more than Rs. The said Sales Tax Officer on the 6th of October, 1959, passed on exemption order under Rule 20B of the Rules, framed under the said Act. In the final exemption order the petitioners turnover in respect of the food-grains was determined at Rs. 12,00,000/- and as that turnover was more than Rs. 7,00,000/- upon which the maximum exemption fee of Rs. 8,000/- was leviable, the Sales Tax Officer determined the exemption fee at Rs. 8000/-. The petitioner having already deposited a sum of Rs. 1,461/- was directed to deposit the balance of exemption fee, viz., Rs. 6,539/- within 16 days. By a separate order of the same date, the Sales Tax Officer passed an assessment order in respect of the petitioner's turnover of goods other than foodgrains. 3. Feeling aggrieved by the aforesaid orders the petitioner firm filed appeals both against the exemption order passed under Rule 20B of the Rules and another appeal against the assessment made under Rule 41(5) relating to the assessment in respect of commodities other than food grains. While these appeals and particularly while the appeal against the exemption order under Rule 20B, was pending the Sales Tax Officer proceeded to make an assessment under Rule 23 of the Rules. No notice before making this assessment was served on the petitioner and in making the assessment it was specifically stated that the assessment was being made under Rule 23 read with Rule 20B(1) of the Rules. 4. The turnover was not determined de novo in the course of these assessment proceedings but was taken from the earlier exemption order dated the 6th of October, 1959, where by the petitioner firm had been called upon to pay the maximum exemption fee of Rs. 8,000/-. The turnover as already noticed, determined in those proceedings was Rs. 12,00,000/- and the same figure was taken in the assessment proceedings under Rule 23 read with the Rule 20B (1) of the Act. It was mentioned in that order that as the dealer had applied for an exemption certificate in respect of the turnover of food grains and the maximum fee of Rs. 8,000/- was directed to be deposited Rs. 1,461/- only and the balance of Rs. 6,539/- was not deposited within the time specified, therefore, it was liable to be assessed to the tax at 3 pies per rupees on the entire turnover of food grains amounting to Rs. 8,000/- was directed to be deposited Rs. 1,461/- only and the balance of Rs. 6,539/- was not deposited within the time specified, therefore, it was liable to be assessed to the tax at 3 pies per rupees on the entire turnover of food grains amounting to Rs. 12,00,000/- as provided in Rule 23 read with Rule 20B(i) of the Rules. The tax thus determined came to Rs. 18,750/- and a sum of Rs. 1,461/- having already been deposited the said demand for Rs. 17,289/- was raised. 5. This assessment order under Rule 23 was passed on 30th of January, 1961. Thereafter, the appeal which had been filed against the exemption order to the Judge (Appeals) Sales Tax was decided on the 2nd January, 1962. The operative portion of this order runs:- "Appeal No. 21 of 1960 is allowed. The case is sent back to the lower court for making re-assessment in the light of my observations contained in the body of the judgment." 6. The main ground of appeal taken was that the sales of food grains made on behalf of registered dealers should not have been included in the assessment made on the dealers own accounts as well as on Ex. U.P. principals. The findings of the Judge (Appeals) Sales Tax, was that the Sales Tax Officer was "not at all justified to treat the entire turnover of food grains determined at Rs. 12,00,000/- as liable to pay exemption fee. In the exercise of his power to make a best judgment assessment in the absence of account books the Sales Tax Officer could not change the nature of the turnover.... cultivators etc." "The appeal against the order of exemption is allowed. The case with respect to exemption is sent back to the lower court for passing necessary order after making proper inquiries in the light of my observations obtained in the body of this judgment." 7. The aforesaid order of the Judge (Appeals) Sales Tax shows that the turnover taken in the exemption order was set aside and it was directed that a fresh assessment in the light of the observations made in the judgment and after making inquiries had to be made. It, therefore, became incumbent on the sales tax authorities to determine the turnover of food grains afresh. It, therefore, became incumbent on the sales tax authorities to determine the turnover of food grains afresh. The Sales Tax Officer however, had already processed to make an assessment under Rule 23 read with Rule 20B (i) on the 30th of January, 1961. Notwithstanding the passing of the order of the Judge (Appeals) dated the 2nd of January, 1962, setting aside the exemption order and directing a fresh assessment to be made the Sales Tax Officer proceeded to take recovery proceedings on the basis of the said assessment order under Rule 23 and also issued a notice dated, the 21st of March, 1963, under Section 15A, for the levy of a penalty. In pursuance of the recovery certificate both the partners were arrested for not paying the said demand of Rs. 17,289/-. The representation made to the recovering officer went unheeded. The petitioner was released from the civil prison on the 1st of April, 1963, and the present writ petition was filed on the 16th of April, 19636, challenging the recovery proceedings and the penalty notice pursuant to the assessment order under Rule 23 of the Act. 8. The main contention of Sri Satish Chandra, the learned counsel of the petitioner, is that the order of the Judge (Appeals) Sales Tax, dated, the 2nd of January, 1962, setting aside the assessment order passed on 6th October, 1959, and directing a fresh assessment, had rendered the assessment order passed on the 30th of January, 1961, under Rule 23 wholly ineffective, at least, for the time being. The opposite party, no doubt, had filed a revision against the order of the Judge (Appeals) dated, the 2nd of January, 1962, which was still pending but until this revision succeed the order of the Judge (Appeals) held the field and a remand order having been made it was not possible or at least not reasonable for the Sales Tax Officer to give effect to the assessment order dated, the 30th of January, 1961, under Rule 23. It was also contended that the jurisdiction to make an assessment under Rule 23 is based entirely on the failure of the petitioner to comply with Rule 20B within the person fixed in the exemption order and when the exemption order itself had been set aside it must ordinarily follow that the assessment made under Rule 23 was without jurisdiction. It was also contended that the jurisdiction to make an assessment under Rule 23 is based entirely on the failure of the petitioner to comply with Rule 20B within the person fixed in the exemption order and when the exemption order itself had been set aside it must ordinarily follow that the assessment made under Rule 23 was without jurisdiction. If that assessment order is without jurisdiction then the recovery proceedings also would be invalid. 9. The learned standing counsel on the other hand contends that the assessment order, under Rule 23, is merely an ancillary order to the exemption not having been granted or the conditions thereunder not having been granted or the conditions thereunder not having been complied with by the petitioner and as such further notice under Rule 23 is required. It was also urged that no specific relief having been prayed for the quashing of the assessment order dated, the 30th of January, 1961, the recovery proceedings cannot be challenged. The usual plea of alternative relief and laches was also raised. 10. The question that falls for consideration is as to the effect of the setting aside of the exemption order on 2-1-1962 by the Judge (Appeals) on the legal rights of the petitioner to claim the exemption provided under the aforesaid Notification issued under Section 4 of the Act? In other words what is the effect of the remand order dated the 2nd of January, 1962, on the assessment made under Rule 23 on the 30th of January, 1961, upon the failure of the petitioner to deposit the required exemption fee within the prescribed period? 11. The said notification exempts food-grains dealers from sales tax provided an application in Form V is made within the period stipulated and the exemption fee determined is paid within the time allowed. Admittedly, the petitioner had made the application for exemption but the Sales Tax Officer by the application of wrong principles of law had determined the turnover of food grains at Rs. 12,00,000/- and it was on the basis of the turnover of Rs. 12,00,000/- that the Sales Tax Officer had demanded the maximum exemption fee of Rs. 8,000/-. The petitioner aggrieved by the said order of the exemption had, as already observed, filed an appeal to the Judge (Appeals) under the statutory right of appeal given under Section 9 of the Act. 12,00,000/- that the Sales Tax Officer had demanded the maximum exemption fee of Rs. 8,000/-. The petitioner aggrieved by the said order of the exemption had, as already observed, filed an appeal to the Judge (Appeals) under the statutory right of appeal given under Section 9 of the Act. The relevant portion of Section 9 reads:- "Any dealer objecting to an order allowing or refusing an application for exemption certificate under clause (b) of sub-section (1) of Section 4 of the Act.... 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." 12. The right of appeal is unconditional except that the application must be filed within the period of limitation. It is not made dependent, in any way, on the setting aside of an assessment which may have come to be made under Rule 23 of the Rules. The right of appeal being unconditional there can be no warrant for importing any further restrictions and making that right of appeal against an exemption order as being subject to the setting aside of an assessment order under Rule 23 which may have been made upon the failure of the petitioner to comply with Rule 20B(h) of the Rules. There is no question that the appeal against the exemption order was filed within limitation and, therefore, the right of the petitioner to file that appeal, to have it adjudicated and effect to be given to it was undoubted. The Judge (Appeals), as already observed, when considering the appeal against the exemption order on its merits, came to the conclusion that the turnover of food grains had been determined at Rs. 12,00,000/- by applying wholly incorrect principles. He had, therefore, allowed the appeal and set aside the exemption order and directed a fresh assessment to be made in the light of the observations made in his judgment. In other words the legal effect of that order of the Judge (Appeals) was to render the exemption order as non-existent and to make the application filed by the petitioner for exemption as still being on the record of the Sales Tax Officer as undisposed of. In other words the legal effect of that order of the Judge (Appeals) was to render the exemption order as non-existent and to make the application filed by the petitioner for exemption as still being on the record of the Sales Tax Officer as undisposed of. The application for exemption being still pending, the turnover having yet to be determined on the basis of which the exemption fee payable had to be ascertained, it necessarily follows that the petitioner cold not be said to have failed "to pay the amount found so due from him and within the period fixed by the Sales Tax Officer." Unless, therefore, the quantum of turnover has been duly determined after the fresh assessment order is made and the petitioner has been called upon to pay the amount so due and when such payment is not made within the time specified then only can it be said that it had failed to pay the amount found so due within the period fixed by the Sales Tax Officer. The exemption order having been set aside a fortiori there is no determination of the turnover and much less of the quantum of the exemption fee. There cannot, therefore, possibly be any default committed by the petitioner in respect of an order which has been set aside by the Judge appeals. 13. The relevant rule relating to the application for certificate of exemption of food grains dealers is Rule 20B. The application has to be made in Form V within 30 days of the commencement of the year for which it had been made. Under clause (e) a provisional exemption certificate to the dealer in Form VI A has to issue on compliance or the preliminary requisite conditions. These were duly complied with in the present case, Clause (h) reads: "The fee deposited under any of the foregoing sub-rules shall be provisional and upon the expiry of the assessment years the Sales Tax Officer shall, after such enquiry as he may deem necessary, determine the turnover of the assessment year and finally fix the exemption fee payable thereon, Clause (i) reads: "If the exemption fee fixed under sub-rule (h) differs from the total amount deposited during the year the difference shall be paid by the dealer, or refunded by the Sales Tax Officer, as the case may be. If the dealer fails to pay the amount found so due from him within the period fixed by the Sales Tax Officer, he shall be assessed to tax for the whole year." Rule 23 runs: "Assessment of tax if no certificate obtained: If no exemption certificate as provided in rule 19, 20, 21 or 22 is obtained by a dealer, he shall be liable to tax as if the provisions of the notification under Section 4 did not apply to him." It was under the latter rule 23 that the assessment was made whereby the petitioner was called upon to pay, instead of the maximum exemption fee of Rs. 8,000/- provided under Rule 20B (h), a sum more than double that fee viz. Rs. 18,750/- on the turnover of Rs. 12,00,000/- which had been determined in the course of the proceedings for an exemption certificate under Rule 20B of the Rules. 14. The more than doubling of the tax liability by an assessment made under rule 23 of the Rules is a serious matter for the petitioner. According to the petitioner before this assessment was made no notice was served upon him and the counter-affidavit shows that as the notice given to the petitioner under Rule 20B(h), demanding the balance of exemption fee had been given it was necessary to give a fresh notice before making an assessment under rule 23 of the Rules. The contention of the department being that the assessment under rule 23 was merely a ministerial act consequent to the default committed by the petitioner under rule 20B (i) of the rules and as such it was a mere matter of arithmetical computation of the tax due. It is unnecessary to decide in these proceedings, as to whether an assessment under rule 23 is a mere ministerial or it is a quasi-judicial act for the reason that I have come to the conclusion that in view of the exemption order having been set aside by Judge (Appeals) the assessment order under rule 23, of the rules, is rendered wholly ineffective at least for the time being and cannot be enforced until such time as the revision filed by the Department against the order or the Judge (Appeals) setting aside the exemption order and directing a reassessment is determined in favour of the department. Until the order of the Judge (Appeals) is set aside by a competent authority the application for exemption by the petitioner must be deemed to be still pending and there can therefore be no default until the proceedings after remand are completed and finalised by the Sales Tax Officer. 15. In any event the contention of the Department that an assessment order under Rule 23 is only a ministerial act is one which may be difficult to accept. Rule 20B of the Rules and the determination of the turnover for the purpose of such exemption may conceivably be different from the determination of the turnover under Rule 23 of the Rules when the dealer has to be assessed on every rupee of his turnover and there is no ceiling as there is for an exemption certificate, of a turnover of Rs. 7,00,000/- nor any maximum exemption fee provided of Rs. 8,000/-. In an enquiry under Rule 20B(h), if the petitioner's turnover is more than Rs. 7,00,000/- and he knows that his maximum liability will be the exemption fee of Rs. 8,000/- under the notification, he will naturally not bother to prove his precise turnover and above Rs. 7,00,000/- as any turnover, no matter how large above Rs. 7,00,000/- will make no difference to his tax liability; but when it comes to an assessment under Rule 23 he will be vitally affected by every rupee of the turnover determined as the tax rate will be at 3 pies on the turnover so determined. If the provisional of Section 7 of the Act read with Rule 21 apply to an assessment made under Rule 23 then there is no escape from the conclusion that it is incumbent on the assessing officer to give the dealer a reasonable opportunity to prove the correctness and completeness of any return submitted by him as provided in the proviso to Section 7(3) of the Act. If that provision could be said to apply only to regular assessments and not to assessments under Rule 23 then also, in my judgment, the principles of natural justice be given to the dealer for proving the correctness and extent of his turnover. No such opportunity appears to have been given to the petitioners before the assessment under Rule 23 was made. 16. No such opportunity appears to have been given to the petitioners before the assessment under Rule 23 was made. 16. It is also a matter of some doubt as to whether an appeal against an assessment made under Rule 23 is at all provided for. Section 9 of the Act which deals with appeals, though it provides for an appeal against an order allowing or refusing an order allowing or refusing an application for exemption certificate no mention is made of any appeal against an assessment which comes to be made under Rule 23 of the Rules. Appeal being a creature of Statute, it can well be argued that as no appeal against such an order had been specifically provided, an appeal did not lie. Even if an appeal lay and it could be said that the petitioner had failed to have recourse to that alternate remedy it would not necessarily debar this court from exercising its jurisdiction, under Article 226 of the Constitution. It is well settled that the existence of an alternate remedy is not necessarily a bar to the exercise of writ jurisdiction. 17. The learned Standing Counsel has contended that Rule 23 comes into pay the moment there is a default in compliance with Rule 20B (h) and once an assessment has been made under Rule 23 even if the exemption certificate is subsequently granted, the recovery proceedings pursuant to the assessment order under Rule 23, could be proceeded with. There is no force in this contention. It is true that the Sales Tax Officer is not obliged to wait for the result of the appeal against the exemption order filed before making an assessment under Rule 23, as the interests of revenue have to be safeguarded and such assessment can not be allowed to become time barred. Such an assessment under Rule 23 when made, in these circumstances, would at best be a protective assessment. After the necessary protection has ben secured by making such an assessment if subsequently it comes to the notice of the Sales Tax Officer that the exemption certificate which was the very foundation of the assessment under Rule 23 had been set aside and the case remanded for making a reassessment, then it is a little difficult to appreciate how that assessment order can still stand or put into execution when the foundation on which it rested stood destroyed. 18. 18. There is no direct authority under the Sales Tax Act or the Income Tax Act as to the effect of a remand order in circumstances such as in the instant case. The cases cited by learned Standing Counsel for the department do not render any great assistance in determining the point which arises here. The first case relied upon is a decision of this Court in M/S Suraj Mal Mathura Prasad Deoria v. Commissioner of Income Tax, (1962) 46 I.T.R. 226 , where it was laid down: "It is open to an Income-tax Officer to impose the maximum amount of penalty which could be imposed under the Act even before the amount of tax that has been avoided is finally determined on appeal. The legality or illegality of the penalty imposed by the Income-Tax Officer must be judged on the basis of the finding of the Income-Tax Officer. He is not required to defer the imposition till his finding is confirmed on appeal. If the amount of tax is reduced on appeal, it is open to the appellate court or the Income-tax Officer to reduce the penalty also."The only point there was as to whether when an appeal is pending against the assessment order, the maximum penalty could be levied by the by the Income Tax Officer. This case is of little or no assistant and if anything it helps the petitioner inasmuch as the right to reduce the assessment or the penalty still vests with the Income Tax Officer whereas in the present case the Sales Tax Officer is not prepared to wait till the remand order is given effect to or the decision of the Judge (Appeals) is reversed by the Judge (Revisions) in respect of the exemption certificate proceedings. He is undue haste and has proceeded to arrest, detain and recover the amount as a result of the assessment made under Rule 23 of the Rules. 19. Padmanabha Menon Krishna Menon v. Commissioner of Income Tax, Southern Division, Banglore, (1957) 32 I.T.R. 651, is again a case where it was held a penalty could be imposed for default in payment of tax in accordance with an assessment which included not only taxable but also non-assessable income. 19. Padmanabha Menon Krishna Menon v. Commissioner of Income Tax, Southern Division, Banglore, (1957) 32 I.T.R. 651, is again a case where it was held a penalty could be imposed for default in payment of tax in accordance with an assessment which included not only taxable but also non-assessable income. The contention there was that if some non-assessable income was included in the assessment order the penalty which has to bear a relation to the income assessed and cannot exceed 1 times the income so assessed could not be made the basis of a penalty order and if such an assessment order was made the basis of the penalty order, the latter would be any act done without jurisdiction. This contention was repelled and it was held that a penalty imposed for default in payment of tax in accordance with such an assessment cannot be said to have been passed without jurisdiction. This case, therefore, does not also advance the case of the department. 20. The next decision relied upon by the learned Standing Counsel was that of M.O. Paily v. Addl. Income-Tax Officer, 1 Circle Trichur, (1956) 35 I.T.R. 488. The only point for consideration there was, whether the filing of an appeal from the order of assessment operates to stay the collection of tax. There cannot possibly by any quarrel with this authority as the mere filing of an appeal would not operate to stay the recovery proceedings. This authority has no relevance to the question involved in the present case which is as to whether a penalty can be levied and recovery proceedings taken when the very foundation for the assessment made under Rule 23 pursuant to which the demand is raised and the penalty sought to be levied is destroyed by the remand order of the Judge (Appeals). 21. In the absence of any authority as to the effect of a remand order resort can legitimately be had to the general principles applicable to civil proceedings. There is no reason why those principles should not equally be applicable to tax proceedings in the absence of any express provisions in the Act itself. There are two Full Benches of this court which are of considerable assistance for the solution of the problem which arises in the present case. The first of these is Kanhaiya Lal v. Tirbeni Sahai, I.L.R. (36) Alld. There are two Full Benches of this court which are of considerable assistance for the solution of the problem which arises in the present case. The first of these is Kanhaiya Lal v. Tirbeni Sahai, I.L.R. (36) Alld. 532 : 12 A.L.J. 876, which laid down that if an appeal had once been filed and is pending against the preliminary decree in a suit for partition, the passing of a final decree does not render the appeal nugatory. The final decree depends, and if, as the result of an appeal, the latter is set aside, the former must fall with it. It is no doubt true that the provision of the Civil Procedure Code for the passing of a preliminary and final decree is based on somewhat different considerations but nevertheless the principle that when a subsequent decree of order is dependent on an earlier one and the earlier order is set aside the latter order must also fall with it is one of universal application, based as it is one principles of equity, justice and good conscience. 22. In the present case the assessment under Rule 23, as already observed, is dependent on the failure of the dealer to make the deposit under Rule 20(h) of the Rules within the time specified. Only if the exemption certificate is not obtained under Rule 20B, then will the Sales Tax Officer be competent to proceed to assess under Rule 23. If the order under Rule 20(h) read with Section 4(b) of the Act is changed and is set aside by the Judges (Appeals), it would follow that the assessment order under Rule 23, if not wholly void, is at least rendered in-effective so long as the exemption proceedings are not finally determined one way or the other by the competent authority. 23. In Uman Kunwari v. Jarbandhan, (1908) XXX Alld. 479 : 5 A.L.J. 447, it was held that he fact that the suit had been decided by the court of first instance in compliance with an order of remand made under Section 562, C.P.C. is no bar to the filing of an appeal from the order of remand or to the hearing of such an appeal. 479 : 5 A.L.J. 447, it was held that he fact that the suit had been decided by the court of first instance in compliance with an order of remand made under Section 562, C.P.C. is no bar to the filing of an appeal from the order of remand or to the hearing of such an appeal. A contention similar to the one raised by the learned Standing Counsel before me that the decision of the Judge (Appeals) will be of no avail to the petitioner as the assessment order, under Rule 23, having been passed which, until set aside, would hold the field was also raised before the Full Bench. The contention there was that even if the appeal from the order of remand could entertained it would be of no avail to the appellant as a decree had already been passed by the court of first instance and that decree would still remain a valid decree. Such an argument as advanced on the basis of an earlier decision of this court in Salig Ram v. Brij Bilas, XXXIX Alld. 659 = 4 A.L.J. 569. The full Bench however overruled this case and held: "After the Court of first instance had once decided the case, it ceased to have any jurisdiction to hear it again except on review of judgment. Its jurisdiction to hear it a second time was derived solely from the order of remand. If that order was erroneous and is set aside, everything done in pursuance of the order must fall to the ground and be of no effect." It was further pointed out in this Full Bench decision that when the law expressly gave an appeal against an order under Section 562 and that provisions was not in any way qualified, the Code does not say that there shall be an appeal only if the case has been finally determined in the court of first instance before that appeal is preferred and comes on for hearing, it is not admissible for the court to import into the Code a provision which does not there exist. The position in the present case, as already observed, is similar. The position in the present case, as already observed, is similar. The right of appeal, given under Section 9, against an order under Rule 20B (h) read with Section 4(b) of the Act, is an unqualified right subject only to the condition of limitation and as such it is not possible to import any such condition which would render such right of appeal illusory. The passing of an assessment order under Rule 23, of the Rules cannot take away the right of appeal against an order under Rule 20B(h) or render it illusory. The petitioner has an undoubted right of appeal against the exemption order and is entitled to have the full effect given to the decision obtained by it from the Judge (Appeals). The effect of that decision cannot be allowed to be whittled down or rendered null and void or illusory by the mere act of the Sales Tax Officer in passing an order under Rule 23(b) of the Rules. 24. In the circumstances of the case, I am satisfied, that as long as the order of the Judge (Appeals) remanding the proceedings for a reassessment and the pendency of the revision by the Department against that order is not decided, it is not legitimately permissible for the Sales Tax Officer either in conscience or in law to proceed to impose penalties, arrest, detain or take recovery proceedings pursuant to the assessment order made under Rule 23 of the Rules when the very foundation on which that assessment was based is at present non-existent - a fresh assessment having been ordered by the Judge (Appeals) to be made. That order of the Judge (Appeals) will continue to hold the field until it is set aside, it at all, by the Judge (Revisions). It is only, if and when the Judge (Revisions) accepts the application of the department that the assessment order under Rule 23 may again become effective and recovery proceedings may revive. But on the other hand if the revision is dismissed then manifestly a fresh assessment as directed by the Judge (Appeals) will have to be made and such an assessment when made will clearly be in consonance with and as a result of the order of the Judge (Appeals) and there will be no question of any bar of limitation against the department at that stage. If and when the assessing officer pursuant to the order of the Judge (Appeals) passes a fresh exemption order and fixes a fresh exemption fee prescribing the time within it is to be paid and upon there being a default in the payment of the exemption fee the right of the department to take action under rule 23 would again come into existence. For the present, therefore, the Department cannot be allowed to arrest or take recovery proceedings against the petitioner. The Department must stay its hands till such time as the revision is decided in its favour. 25. For the reasons given above it is directed that a writ will issue restraining the Sales Tax Officer and the Recovery Officer and the Collector Sharanpur from taking any recovery proceedings or levying any penalty in default of payment, until such time as the order of remand by the Judge (Appeals) stands and is not set aside by any competent authority. 26. The application is accordingly allowed with costs.