9911796707
TMI Blog1970 (8) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... llows: The assessee was a members' club in Balaghat. It purchased liquor which is alleged to have been for consumption by its members. For the three periods which are in question in the three matters the Assistant Sales Tax Officer assessed the sales tax payable by the assessee. The assessee, however, contended that it was not a dealer at all and could not be assessed. The assessee filed an appeal before the Appellate Assistant Commissioner who agreed with the assessee and held that the assessee not being a dealer could not be assessed. He set aside the order of the Assistant Sales Tax Officer. This order was revised by the Commissioner of Sales Tax under section 39(2) of the Act. The Commissioner after giving notice to and hearing the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that opinion affects the assessee's liability to pay tax and consequently a reference is competent. 4.. It is, therefore, necessary to look at the relevant part of section 44 of the Act which authorizes a reference. It runs thus: "44. (1) Within sixty days from the date of communication by the Tribunal of any order under sub-section (2) of section 38 or sub-section (3) of section 39 affecting the liability of any dealer to pay tax, such dealer or the Commissioner may, by application..." (Underlining* is ours). There is no dispute that the impugned orders by the Tribunal are under section 39(3). The decision must turn upon the interpretation of the phrase "affecting the liability of any dealer to pay tax". This phrase expressed in ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ram Ltd. v. Commissioner of Income-tax[1955] 27 I.T.R. 709 at p. 716 (S.C.). , their Lordships of the Supreme Court observe: "Liability does not depend on assessment. That, ex hypothesi, has already been fixed. But assessment particularizes the exact sum which a person liable has to pay." Here italicised. Their Lordships, therefore, recognize that first there is that primary liability which is not dependent on any subsequent orders of assessment and then after assessment there arises the liability to pay the tax assessed. We are of opinion that in section 44 it is the second liability which is created by assessment and which can be affected by subsequent orders in appeal or revision that is spoken of. 6.. Learned counsel appearing f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also taken to the Supreme Court and there also the merits of the case were considered. Throughout, the question of non-maintainability of the reference was neither raised nor considered. We, therefore, do not take this case as an authority for the proposition that a reference lies even against an order of remand where there is no question of any preexisting liability to pay tax having been affected by the impugned order. 8.. We may also refer to The Commissioner of Sales Tax, M.P. v. Dr. RamkumarsinghMiscellaneous Civil Case No. 353 of 1967 decided on 31-10-1969. In that case a reference had been made to this court for answering certain questions arising out of a remand order. A Division Bench of this court, of which one of us (B. Da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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