9911796707
TMI Blog1978 (10) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... There should not, therefore, have been a further occasion to ask for this Court's opinion on virtually the same question arising on similar facts. Since, however, once again opinion of this Court has been sought, it has to be answered. 2.. In this judgment, the Commissioner of Commercial Taxes shall be referred to as the "department" and the respondent-opposite party shall be referred to as the "dealer". 3.. The dealer returned a gross turnover of Rs. 12,42,36,362 for the period 1958-59. Out of this gross turnover a sum of Rs. 6,52,613 was claimed as deduction on account of sales of vanaspati outside Bihar on consignment basis. The dealer's claim was rejected by the assessing officer on the ground that the sales had been effected in pursuance of a contract for sale and, therefore, the sale was in the nature of inter-State sale. On appeal, the Deputy Commissioner of Commercial Taxes, being satisfied that out of the said sum of Rs. 6,52,613, goods worth Rs. 5,07,431 had been despatched on self-consignment basis outside Bihar, accepted the dealer's claim to that extent by his order dated 4th July, 1963. Thus, in effect, the dealer's claim of the balance amount of Rs. 1,45,182 rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to that part of the Deputy Commissioner's order, wherein he had considered and allowed the dealer's claim for deduction to the extent of Rs. 5,07,431, but had pointedly observed that "as this point is not specifically (sic) for consideration before us, we refrain from making any observation on the finding of the Deputy Commissioner on this point ". In other words, according to the learned counsel for the department, the doctrine of "merger" would be applied only when the point dealt with by the lower tribunal was specifically considered by the higher tribunal. Since that point was left out of consideration by the higher tribunal, that part of the Deputy Commissioner's order did not merge in the order of the Commercial Taxes Tribunal. He has placed reliance on a decision of the Supreme Court in the case of State of Madras v. Madurai Mills Co. Ltd.[1967] 19 S.T.C. 144 (S.C.)., confirming the decision of the Madras High Court in the case of Madura Mills Co. Ltd. v. State of Madras[1962] 13 S.T.C. 124. *Commissioner of Commercial Taxes v. Rameshwar Das Panna Lal 7.. I think the argument is based on a misconception of the principles underlying the doctrine of merger. To my mind, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served by the Supreme Court in the case of Amritlal Bhogilal Co.[1958] 34 I.T.R. 130 (S.C.).: "There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement........" The above observation, carried to its logical end, will mean that if an order passed in appeal is carried further up in revision before a higher tribunal, the order passed in revision by such tribunal becomes the operative and enforceable order, the orders passed by the inferior tribunal getting merged in it. 9.. This position is, however, true only in respect of appeals or revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, which would have saved action sought to be taken by the Board from being barred by limitation. A question having been referred to the High Court, as to whether there was a merger of the assessment order in the revisional order, the High Court answered it in the negative (reported in [1962] 13 S.T.C. 124*), which the Supreme Court affirmed, vide its decision reported in [1967] 19 S.T.C. 144 (S.C.). While *Madura Mills Co. Ltd. v. State of Madras. affirming the decision of the Madras High Court, the Supreme Court observed: "......But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior tribunal and the other by a superior tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction Dealing wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
