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TMI Blog1985 (10) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs were started against Gulab Chand Malpani, one of the partners of the firm M/s. Sushil Kumar Kamal Kant, Bhadra. Gulab Chand Malpani's properties were attached and they were proclaimed for sale. He, therefore, filed objections before the assessing authority that as the firm M/s. Sushil Kumar Kamal Kant, Bhadra, had already been dissolved, the assessment dated September 16, 1966, of the dissolved firm was a nullity and so, the recovery proceedings should be dropped. The C.T.O. vide his order dated December 2, 1972, overruled the objections. He opined that since no appeal or revision against the assessment order has been filed, the assessment order could not be challenged before him. Aggrieved, Gulab Chand Malpani filed a revision before the Board, which was registered as Revision No. 5/73. In that revision, an application for staying the recovery was filed. On January 15, 1973, an interim order was passed in his favour. The single Member of the Board, by his order dated February 15, 1973, vacated the ad interim order and rejected the application for stay. A special appeal under section 14(4A) of the Rajasthan Sales Tax Act, 1954 ("the Act" herein), was filed, which was register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence Application No. 31/76 is concerned, that question was also involved in the Reference Application No. 169/76 and, therefore, the question sought to be referred in Reference Application No. 31/76 need not be directed to be referred in that case. It, accordingly, rejected Reference Application No. 31/76. The question which was raised in Reference Application No. 169/76 was reframed by this Court with the consent of the parties, which has already been reproduced hereinabove. Before we proceed further, it may be stated that in the statement of case, the Board has stated that the question can be divided into two parts: (i) Whether in the facts and circumstances of the case the Board was justified in remanding the case for reassessment under the provisions of section 9(3)(b) of the Rajasthan Sales Tax Act, while dealing with rectification matter? (ii) Whether in the facts and circumstances of the case the Board was justified in remanding the case for reassessment under the provisions of section 9(3)(b) of the Act when the non-applicant assessee had not preferred any appeal or revision against the assessment order dated September 16, 1966? With regard to the first part of the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the assessing authority, is that the Division Bench of the Board, erred in law while hearing the special appeal against the order dated February 15, 1973, of the single Member, by which he vacated the ad interim stay order granted vide order dated January 15, 1973, in revision which was filed by G.C. Malpani against the order dated December 2, 1972, passed by the C.T.O. requesting to stay recovery proceedings, on the application that was filed by G.C. Malpani before him on the ground that the assessment has been made against the dissolved firm, M/s. Sushil Kumar Kamal Kant, Bhadra. In other words, learned counsel appearing for the assessing authority submitted that against the order refusing the interim stay, by a single Member of the Board in a pending revision against the order of the C.T.O. declined to drop the recovery proceedings, was not competent to set aside the assessment order dated September 16, 1966, for the assessment years 1961-62, 1962-63 and 1963-64, by which a demand was created against the firm M/s. Sushil Kumar Kamal Kant, Bhadra, which demand became final, inasmuch as no appeal or revision under the Act was filed against it by the aggrieved part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Division Bench of the Board recalled the order rejecting the appeal dated October 16, 1973, and ordered for the restoration of the appeal. After hearing the special appeal against the order dated February 15, 1973, by which the single Member of the Board vacated the ad interim stay order and rejected the stay application in the pending revision before him, allowed the appeal and set aside the order of the single Member dated February 15, 1973 and gave the directions to the assessing authority, which have already been reproduced hereinabove. Section 13 of the Act, as it existed then, deals with appeals against assessment orders. Section 14 provides for revision. Now, under section 14(2), the Board in a revision, after calling for the record of the proceedings in which the order complained against, has been passed and after examining the record subject to the provisions of the Act, pass such order, which may not be prejudicial to the assessee, as it thinks fit. Section 14(4A) provides for filing a special appeal against an order of the single Member. Section 14(5) provides that despite an application for revision of an order has been preferred to the Board, the tax shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee failed to pay within the time allowed the amount of tax assessed on him and so; the Assistant Commercial and Sales Tax Officer imposed a penalty on him under section 16(1)(b) of the Act. The assessee did not file any appeal against the order imposing penalty but filed a revision petition before the Board of Revenue under section 14(2) of the Act. The question arose whether the revision could be entertained by the Board. The Division Bench ruled that the assessee could have appealed under section 13 and could have agitated in that appeal the question whether the officer had the jurisdiction to impose the penalty and simply because the Board of Revenue was constituted as an authority which can call for the record of any proceedings under the Act, it could not go beyond the powers conferred upon it in entertaining the revision petition. It was further held that the Board had no jurisdiction to revise the order of the Assistant Commercial and Sales Tax Officer. In Central Camera Co.'s case [1971] 27 STC 112 (Mad.), while considering the phrase "as it may think fit", in section 36(3)(a)(iii) of the Madras General Sales Tax Act, 1959, it was held that the said phrase must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board, in special appeal exceeded its jurisdiction when it, while setting aside the order under appeal, had directed the assessing authority to make an enquiry as to whether the firm had been dissolved and if so, to proceed under section 9(3)(b) of the Act. The order passed in the special appeal cannot be sustained. It is accordingly set aside. The result is that the question of law, which arises out of the order of the Board, is decided by holding that the Board of Revenue was not justified in remanding the case for reassessment under the provision of section 9(3)(b) of the Act, as no appeals or revisions against the assessment order dated September 16, 1966, passed in respect of the assessment years 1961-62, 1962-63 and 1963-64, were filed. This reference, which is deemed to be an application for revision under section 15 of the Act, as substituted by the Amendment Act, is, therefore, allowed and the order dated August 11, 1975, passed by the Division Bench of the Board in the special appeal under section 14(4A) of the Act, is set aside. In the circumstances of the case, we leave the parties to bear their own costs. Before parting with the case, we make it clear that noth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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