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2008 DIGILAW 1687 (ALL)

COMMISSIONER, TRADE TAX, U. P. v. CHEMICOSE.

2008-08-19

PRAKASH KRISHNA

body2008
JUDGMENT PRAKASH KRISHNA, J. - The present revision has been filed against the order dated March 31, 2000 passed by the Trade Tax Tribunal in second appeal No. 44 of 2000 relevant to the assessment year 1996-97 in connection with the proceedings under section 21 of the U.P. Trade Tax Act, 1948 whereby and whereunder it has set aside the order of remand passed by the first appellate authority. The facts are not much in dispute. The present case arises out of the reassessment proceedings initiated under section 21 of the U.P. Trade Tax Act, 1948 relevant to the assessment year 1996-97 (Central). The dealer carries on the business of manufacturing and sale of solvent thinner and pesticides, etc. After completing the regular assessment proceedings, the Department received information with regard to the certain transaction entered into by the dealer with M/s. Sadashiv Enterprises Raiganj, West Bengal for a sum of Rs. 2,96,000. The information was that the dealer has realised Central sales tax at the rate of four per cent on such transaction. Since the said transaction was not disclosed in the assessment proceedings, the proceedings under section 21 of the Act was initiated and ultimately by the order dated September 30, 1999 the assessing officer assessed the escaped turnover to the tune of Rs. 5 lakhs. The said order was challenged by way of appeal before the first appellate authority before whom it was urged by the dealer that no opportunity of hearing was afforded to it by the assessing officer while passing the order under section 21 of the Act. The said contention did find favour with the first appellate authority who consequently set aside the reassessment order and remanded the matter back for fresh consideration after giving an opportunity of hearing to the dealer. Still aggrieved, the dealer preferred second appeal before the Tribunal. The Tribunal by the order under revision has allowed the appeal in toto and set aside the proceedings under section 21 of the Act. Still aggrieved, the dealer preferred second appeal before the Tribunal. The Tribunal by the order under revision has allowed the appeal in toto and set aside the proceedings under section 21 of the Act. In the memo of revision, the following questions of law have been sought to be raised : (i) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to set aside the order of section 21 whereby the inter-State sales were determined on the basis of the information received against the dealer from the check-post which was not verified either from the assessment file or from the account books of the dealer ? (ii) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to quash the order of the first appellate authority whereby the case was remanded back to the assessing officer to pass an order afresh under section 21 after making detailed enquiry in respect of the information received against the dealer by depriving the opportunity of conducting enquiry by the Department ? Heard the learned counsel for the parties and perused the record. The main contention of the learned counsel for the Department is that the Tribunal has assumed certain facts while passing the order under revision. The Tribunal has proceeded on the footing that it was found by the first appellate authority that the said information in possession of the Department was not related to the dealer which is not so. On this premise, the Tribunal set aside the order passed under section 21 of the Act. The learned counsel appearing for the dealer - opposite party could not show from the order of the first appellate authority that any such finding was arrived at by the first appellate authority. On the contrary, the only plea which was raised before the first appellate authority was that proper opportunity of hearing was not afforded. Accepting the said plea, the matter was restored back to the assessing officer to grant a fresh opportunity of hearing. Evidently, no such finding, as assumed by the Tribunal in its order that it was found by the first appellate authority that the said information does not relate to the dealer, was recorded. The Tribunal, thus, proceeded to decide the appeal on presumption and assumption. Evidently, no such finding, as assumed by the Tribunal in its order that it was found by the first appellate authority that the said information does not relate to the dealer, was recorded. The Tribunal, thus, proceeded to decide the appeal on presumption and assumption. The order of the Tribunal is perverse as it is based on existence of certain facts which do no exist. Apart from the above, this court is of the view that the second appeal before the Tribunal was not maintainable at all. Once an order of remand was passed by the first appellate authority holding that no opportunity of hearing was given to the dealer, the dealer could not have any grievance against the said order as no finding on merit was recorded by the first appellate authority. The Tribunal was, therefore, not justified in any view of the matter to entertain the appeal. I find sufficient force in the argument of the learned standing counsel that the finding recorded by the Tribunal is perverse and against the material on record and it is held that the Tribunal was not justified to interfere with the order of the first appellate authority. In view of the above discussion, the revision succeeds and is allowed. The order of the Tribunal under revision is set aside and the order of the first appellate authority is restored. No order as to costs.