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TMI Blog1979 (2) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... ders, namely, Babu Mian Ibrahim, M/s. Bharat Trading Company, M/s. Yogesh Kumar Sons and M/s. Beni Ram Harcharan Lal, from whom he claimed to have purchased vegetable oil in Uttar Pradesh amounting to Rs. 3,83,306. The Sales Tax Officer, Allahabad, who was the assessing authority, made enquiries from the respective Sales Tax Officers within whose jurisdiction the four parties from whom the dealer claimed to have made purchases of vegetable oil inside the State were said to be trading. The Sales Tax Officer, Moradabad, reported that the firm, M/s. Bharat Trading Company, was a bogus firm which had not been assessed to tax in respect of the transactions disclosed by the dealer. The Sales Tax Officer, Kanpur, reported that the proprietors of the firm M/s. Yogesh Kumar Sons were not traceable. The firm M/s. Babu Mian Ibrahim made a representation to the Assistant Commissioner (Judicial), Sales Tax, Allahabad Range, through its Advocate, alleging that the dealer had presented fictitious bills from a number of vegetable ghee dealers in the State with a view to show that he had himself not imported corresponding quantity of vegetable ghee from outside the State. Amongst others, he d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler to Rs. 52,95,608 and assessed him to tax amounting to Rs. 3,13,918.70. The dealer questioned the assessment order dated 16th August, 1962, by filing an appeal before the Judge (Appeals), Sales Tax, Allahabad. He contended that while making fresh assessments in pursuance of the remand order dated 25th November, 1958, it was not open to the assessing authority to take any fresh material into consideration. According to him, the assessing authority had to confine itself to the directions given in the remand order. The appellate authority rejected the submission and held that, on remand, the entire case became wide open and the Sales Tax Officer was fully within his jurisdiction in taking into account fresh material as well which came to his notice subsequent to the order of remand. However, as in his opinion, the assessing authority did not afford proper opportunity to the dealer for being heard on the question of import of vegetable oil from outside the State, he set aside the assessment order and remanded the case for making a fresh assessment. The dealer, not being satisfied with the opinion of the appellate authority, viz., that while making fresh assessment in pursuance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revising authority it was necessary to obtain the opinion of a Full Bench on the following question of law: "Where the order of assessment is set aside by the appellate or revising authority which remands the case to the assessing authority with certain directions for making a fresh assessment, has the assessing authority subject to carrying out such directions the same power as it had originally in making the assessment under section 7 of the U.P. Sales Tax Act?" In order to answer the question referred to us, it will be convenient to state in brief the scheme for assessing tax as provided in the U.P. Sales Tax Act. Section 7 of the Act requires every dealer liable to pay tax under the Act, to submit periodical returns of his turnover. Sub-section (2) thereof enables the assessing authority to scrutinise the return and to make such enquiries as it considers necessary and thereafter if it finds the return to be correct and complete, to assess to tax on its basis. If, however, the dealer does not submit the returns or the returns filed by him are found to be incorrect or incomplete, the assessing authority is enjoined by sub-section (3) to determine the turnover of the dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A perusal of the aforementioned provisions shows that while dealing with an appeal under section 9 of the Act, the appellate authority has been empowered either to confirm, reduce, enhance or annul the assessment or to set it aside and direct the assessing authority to pass a fresh assessment order after such further enquiry as it may direct. Where, while disposing of the appeal, the appellate authority is not in a position to make a final order either confirming, reducing, enhancing or annulling the assessment, and it finds the assessment proceedings to be defective in any material particular, the only order which it makes is to set aside the assessment and to direct the assessing authority to pass a fresh assessment order after making such further enquiry as it may direct. As soon as the assessment order is set aside and the assessing authority is directed to pass a fresh assessment order, the proceeding in which the assessment order was made is revived and it has to be concluded afresh in accordance with the provisions applicable to it after holding such enquiry as may be directed by the appellate authority. The direction which an appellate authority can, while setting aside an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r he may set aside the assessment and refer the case back to the Income-tax Officer for making afresh assessment in accordance with the directions given by the Appellate Assistant Commissioner and after making such further enquiry as may be necessary, 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." It may be noticed that whereas under section 9, sub-section (3)(b), of the U.P. Sales Tax Act, the only order that the appellate authority can, while setting aside an assessment, make is to direct the assessing authority to make a fresh assessment order after making such further enquiry as may be directed by it, section 251(1) of the Income-tax Act gives slightly wider powers to the Appellate Assistant Commissioner in similar situation. This section empowers the Appellate Assistant Commissioner to, while setting aside an assessment, give directions to the Income-tax Officer not only with regard to making of enquiries before making fresh assessment order, but also with regard to the making of the assessment itself. Consequently, whereas the Appellate Assista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that power the revising authority can remand a case to the assessing authority for making assessment or fresh assessment in accordance with the directions given by it. Here the revising authority, like the Appellate Assistant Commissioner under the Income-tax Act, has been given ample power to inhibit the scope and ambit of the assessment proceedings to be carried on by the assessing authority. In appropriate cases; the revising authority can direct the reopening of the assessment proceedings on certain specified questions only and not in respect of other questions. Accordingly, in each case of remand made by the revising authority, it will depend upon the order passed by it as to whether the assessing authority will have the jurisdiction to make the assessment under section 7 of the Act or that his jurisdiction will stand inhibited in any manner. Sri S.P. Gupta, the learned counsel appearing for the dealer, urged that sub-section (2) of section 21 of the Sales Tax Act lays down that no order of assessment under sub-section (1) or under any other provision of the Act can be made for any assessment year after the expiry of four years from the end of such year. The second provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable for the purposes of assessment or reassessment made in consequence of or to give effect to any finding or directions contained in an order under section 9, 10 or 11 of the Act. Where the appellate authority sets aside an assessment and directs a fresh assessment to be made, the fresh assessment is to be made in consequence of a direction contained in an order made under section 9 of the Act. Such assessment proceedings will have to be taken in accordance with section 7 of the Act, i. e., in accordance with the powers which the assessing authority originally had and for such proceedings the period of limitation as prescribed in subsection (2) of section 21 would not be available. Sri S.P. Gupta next argued that jurisdiction of the appellate authority, while deciding an appeal under section 9 of the Act, is confined to the subjectmatter of the appeal preferred by the assessee and it cannot go outside it. The phrase "confirm, reduce, enhance or annul the assessment" of the appellant in sub-section (3) of section 9 of the Act does not include that part of the assessment order which is not the subject-matter of appeal. The appellate authority may decide the points raised i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a fresh assessment is that the original assessment proceedings are revived and the assessing authority has to make the assessment afresh within the ambit and scope of section 7 of the Act. That section specifically enables the assessing authority to make enquiries and to take all such materials into consideration which come to its notice before making the assessment order. Accordingly, the jurisdiction of the assessing authority to take fresh material into consideration cannot be inhibited by the theoretical consideration that, generally speaking, the appellate authority cannot remand the case to the assessing authority which results in the assessing authority doing something which the appellate authority itself could not do. Sri S.P. Gupta next argued that the original assessment proceedings under section 7 of the Act are something different from the assessment proceedings in consequence of an order of remand. Accordingly, once the original assessment is finalised, the only method provided by the Act to further assess the dealer is by way of a notice provided under section 21 of the Act. Except under that section a dealer cannot be assessed for the escaped turnover. The turno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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