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TMI Blog1969 (3) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... l time. It appears that the assessee had made a request at the time of the assessment for the grant of further time for filing the remaining 'C' forms. The assessee appears to have been granted some time which, however, was not sufficient and the assessee could not produce the requisite 'C' forms before the assessment order was passed. The assessee went in appeal before the judge (Appeals) and put forward the grievance that sufficient opportunity had not been granted to it by the Sales Tax Officer for filing the 'C' forms. It was stated before him that the remaining 'C' forms had in fact been filed in the office of the Sales Tax Officer just a day or two after the assessment order had been passed. This plea of the assessee found favour with the judge (Appeals), who apparently was of the opinion that adequate opportunity had not been granted to the assessee for filing the remaining 'C' forms. Since the 'C' forms had already been filed, he verified them himself and found them to be in order. He, therefore, allowed relief to the assessee after taking into consideration the 'C' forms subsequently filed by the assessee. The Commissioner of Sales Tax was not satisfied with this order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods are sold in a prescribed form. The declarations in form 'C' under rule 8 of the U.P. Sales Tax Rules (sic) have to be attached by the selling dealer to his returns. Rule 5 prescribes the time for filing the returns which is the same as provided in rule 41 of the U.P. Sales Tax Rules. According to rule 41, returns have to be filed within one month of the end of each quarter of the assessment year. Rule 5-A which was added on 6th September, 1958, provides that a dealer may file a revised return at any time before the assessment is made, if he discovers any omission or wrong statement in the returns already filed by him. A combined reading of these provisions shows that 'C' forms may be filed at any time before the assessment is made. This indeed is the view which has been taken by the sales tax authorities in the instant case. We find that the same is correct. However, the question arises as to whether it is open to the appellate authority to entertain 'C' forms in an appeal filed by an assessee. It is not disputed that if the appellate authority finds that sufficient opportunity had not been granted to an assessee to file 'C' forms, he may set aside the assessment and direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her enquiry as the Incometax Officer thinks fit or the Appellate Assistant Commissioner may direct, and the Income-tax Officer shall thereupon proceed to make such fresh assessment, and determine where necessary the amount of tax payable on the basis of such fresh assessment." The Supreme Court had an occasion to consider the scope of the powers of an Appellate Assistant Commissioner in Commissioner of Incometax v. McMillan Co.[1958] 33 I.T.R. 182.There the question arose as to whether the Appellate Assistant Commissioner of Income-tax while dealing with an appeal of an assessee against an assessment under the Income-tax Act could for the first time apply the proviso to section 13 of the Income-tax Act which reads as under: "13. Income, profits and gains shall be computed, for the purposes of sections 10 and 12, in accordance with the method of accounting regularly employed by the assessee: Provided that, if no method of accounting has been regularly employed, or if the method employed is such that, in the opinion of the Income-tax Officer, the income, profits and gains cannot properly be deduced therefrom, then the computation shall be made upon such basis and in such mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in its jurisdiction to grant him the necessary relief. The manner in which the appellate authority grants the relief would depend upon his discretion. He may set aside the assessment and remand the case to the Sales Tax Officer for fresh assessment with a direction to entertain the 'C' forms which the assessee had not been able to file at the time of the original assessment or he may himself entertain the 'C' forms and allow the assessee the necessary relief. Essentially there is no difference between the two. If the matter requires further investigation, the proper course for the appellate authority would be to set aside the assessment with a direction to the Sales Tax Officer to make further investigation, but if the matter can be disposed of without any further enquiry, he may dispose it of himself. Under rule 75 of the U.P. Sales Tax Rules, an appellate authority has been invested with the powers of a civil court trying a suit in the matter of (a) enforcing the attendance of a person and examining him on oath, (b) compelling the production of documents, and (c) issuing commissions for the examination of witnesses etc. This provision points to the inference that even if it becom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified in entertaining the same and granting the necessary relief to the assessee, if otherwise satisfied on the merits of the case. Apart from that, it is a well settled principle of law that an appeal is merely the continuation of the original proceedings and unless some fetters are placed upon the powers of the appellate authority by express words, he exercises the same powers as does the original court or authority. Learned counsel for the department has placed reliance upon three cases all reported in [1962] 13 S.T.C. The first one is the case of Deputy Commissioner of Agricultural Income-tax and Sales Tax v. A.M. Abdul Wasigh and Brothers[1962] 13 S.T.C. 295. There the assessee had submitted a return and he was served with a notice on 27th January, 1959, stating that he would be taxed on a turnover at enhanced rate if objections were not filed and accounts were not produced on 31st January, 1959. The assessee did not ask for adjournments and did not file the 'C' forms on or before the appointed date, and the assessment order was passed on 31st January, 1959. The assessee stated that he had sent his objections on 30th January, 1959, and had also requested the officer to gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent itself after verifying the 'C' forms, a result which would have inevitably followed if the appellate authority had set aside the assessment order and remanded the case to the Sales Tax Officer for a fresh assessment. For all these reasons we answer the question referred to us in the affirmative in favour of the assessee and against the department. The assessee is entitled to his costs which we assess at Rs. 100. The fee of the learned counsel for the department is also assessed at the same figure. PATHAK, J.-I agree with my brother Gulati, J., that the question referred must be answered in the affirmative. The assessee was unable to furnish 'C' forms in respect of some of the inter-State sales before the Sales Tax Officer during the assessment proceeding, and it was only a day or two after the assessment order had been made that he did so. In appeal the assessee seems to have contended that he had not been afforded adequate opportunity by the Sales Tax Officer to furnish the 'C' forms, and the plea was accepted by the Judge (Appeals) Sales Tax, who examined the 'C' forms on the record filed after the assessment order had been made and accordingly reduced the tax liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct judgment is intended-it is clear that the appellate authority can entertain the 'C' forms which the dealer could not file in the circumstances mentioned above. That the appellate authority enjoys the power to take additional evidence during an appeal is also apparent from rule 75 which entitles it to the powers vested in a court under the Code of Civil Procedure, when trying a suit, in respect of enforcing the attendance of any person and examining him on oath or affirmation, compelling the production of documents and issuing commissions for the examination of witnesses. Reference has been made on behalf of the revenue to Deputy Commissioner of Agricultural Income-tax and Sales Tax v. A.M. Abdul Wasigh and Bros.[1962] 13 S.T.C. 295.In that case, the assessee did not file the 'C' forms on or before the date fixed for assessment and he did not also apply for time to do so. He filed the 'C' forms but not in time. They were received by the taxing officer some days after the assessment order had been completed. The Appellate Tribunal condoner the delay in filing the 'C' forms and directed the taxing officer to make a fresh assessment. The Kerala High Court did not approve of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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