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TMI Blog1959 (9) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions referred to above, and rule 37 did not require that any opportunity should be given to the petitioner to be heard on the point before dismissing the petition. 2.. Before the Board, the point raised on behalf of the petitioner is that the entire case of the petitioner before the Assistant Commissioner was one of denial of liability and it was on his pressing this point, that the learned Assistant Commissioner permitted him to pay a certain further sum, over and above what he had paid already, and directed the stay of further realisation, pending disposal of the appeal. Therefore, it is argued, that thereafter, it was not open to the learned Assistant Commissioner to have dismissed his appeal in limini on the ground of his default in complying with the provisions contained in the proviso to sub-section (1) of section 24 of the Act. Learned Advocate relies on the ruling of the Patna High Court reported in Md. Amin Brothers v. The State of Bihar(1). This ruling, however, does not support the learned Advocate's contention, because this relates to a case of default in appearance, after the appeal had been admitted, (1) [1951] 2 S.T.C. 63. The judgment of the Court was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter having fixed for hearing and having heard the arguments. I do not think it can be seriously contended that the learned Assistant Commissioner was not competent to refuse to entertain the appeal on the ground mentioned by him, had he passed that order in the very first instance at the time of admission. Before entertaining or admitting an appeal, the appellate authority is required to satisfy himself that the condition laid down in the proviso to sub-section (1) of section 24, which is a condition pre-requisite to the entertainment of the appeal, has been fulfilled. The form of appeal, namely, Form X, contains certain columns which, if properly filled, would give the relevant information, on which the appellate authority could satisfy himself that this condition had been fulfilled. It is clear in this case, the form as filled in by the appellant showed that this condition had not been fulfilled. There was no question of further amendment of form or opportunity to do so, since the form had been properly filled in and, therefore, at the stage of entertaining the appeal the learned Assistant Commissioner unquestionably could have passed the order that he did. 4.. It is quite a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be deemed to have been finally merged in the order of the High Court, and that the Deputy Commissioner had no power to reopen the assessment in exercise of his revisional jurisdiction. The Tribunal, therefore, excluded from the assessable turnover of the assessee the two sums, Rs. 33,73.733 and Rs. 3,03,187-8-0. The Tribunal, however, held that the assessee was liable to sales tax on the sum of Rs. 4,437-5-0, which represented amounts collected by the assessee by way of tax. The State of Madras applied under section 12-B of the Act to revise the order of the Tribunal. The learned Government Pleader contended that there could be no question of any merger of the order of the Commercial Tax Officer in its entirety in the judgment either of the Appellate Tribunal or that of the High Court. The learned Government Pleader pointed out that only the assessee could have appealed against the order of the Commercial Tax Officer, and that only in so far as the assessment order was against the assessee ; such an appeal could not be deemed to comprehend that portion of the order of the assessing officer which was in favour of the assessee, for example, the exemption granted to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner could very well have approached the learned Commissioner, but, instead, he has moved the Board and, although, ordinarily, the Board would, in a case where an approach to a lower authority is possible, not admit an application, in view of the special circumstances of this case, and to avoid multiplicity of proceedings, it would entertain this application under paragraph 5(a) of rule 36 of the Bihar Sales Tax Rules, 1949. 6.. The result is that the order of the learned Assistant Commissioner, although it may have been correct if he had passed such an order at the very inception of the proceedings, was not a lawful order at the stage when he did pass the order, as by that time it must have been apparent to him that in view of the denial of liability by the petitioner, the proviso to subsection (1) of section 24 was not attracted. His order, therefore, was not an order in conformity with the law. The Board is not precluded from entertaining an application in revision against such an order in terms of the wording of the second proviso to sub-section (4) of section 24, because the Board is not deciding on the merits of the assessment, but only on the question of the propri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, could only be revised by the appropriate authority and cannot be appealed against by the department. The revisional powers conferred on the High Court to revise the orders of the Tribunal, however, can be invoked either by the assessee or by the State. That is the scheme of the statutory provisions for appeals and revision. These provisions make it clear that an order of assessment is treated as a single one subject to an appeal by a taxpayer, the State being left with the limited right to get the orders revised by the competent authority to correct errors in assessment. The powers of revision conferred on the respective authorities may be exercised both for the Commissioner, affirming that order. The Board would direct accordingly, and remand the case to the learned Assistant Commissioner to hear the appeal on merits and then pass an order in accordance with law. Case remanded. benefit of the State and the taxpayer. There is nothing in section 12 to warrant an assumption, that such powers are given only to protect the interests of revenue and not to protect the interests of the taxpayer as well. Though the statute envisages two sets of remedies, appeals and revision, the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Commissioner, purporting to act under section 12(2)(i), i.e., acting suo motu, passes an order prejudicial to the assessee, the latter can prefer an appeal against such an order to the Tribunal under section 12-A. If the Tribunal had already passed an order on an appeal by the assessee against the order of the Commercial Tax Officer, it should be anomalous to have another appeal on the same subject-matter, viz., the assessment, to the Tribunal, after the Deputy Commissioner has passed an order in exercise of his revisional jurisdiction with reference to the same assessment. Principle and reason suggest that there should be no scope for the Appellate Tribunal adjudicating on the same assessment over again, and that the jurisdiction of the Deputy Commissioner should end when the Appellate Tribunal has passed its order in exercise of its appellate jurisdiction. We have already pointed out that an order of assessment should be viewed as single and indivisible. In an appeal filed to the Appellate Tribunal under section 12-A, although the Tribunal is not entitled to increase the assessment, there is nothing to preclude the Tribunal from considering the propriety of the order app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either by appeal or by revision, but there being only one final order of assessment all through. We are unable to see anything in the provisions of the Act to justify the principle that an assessment or an order on appeal therefrom is a severable one, liable to be simultaneously interfered with by two independent authorities or tribunals. The Appellate Tribunal held that the order of the Commercial Tax Officer was merged in the order of the Appellate Tribunal. Independent of any theory of merger of the order of the subordinate authority in the order of the appellate authority, we are of the view that the provisions of the Act do not warrant the existence of any power in the Deputy Commissioner to interfere under section 12 of the Act with an order of the Commercial Tax Officer passed under section II, when such an order has itself been superseded by the order of the Appellate Tribunal. In the present case, the assessment order went a stage further. There was the final disposal by the High Court under section 12-B of the Act. The Deputy Commissioner had no jurisdiction to revise an assessment which had been the subject-matter of a final order of the High Court, i.e., an assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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