9911796707
TMI Blog1988 (12) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... entries relating to assessee's business for the assessment years 1974-75 and 1975-76. The assessment for the year in question was made on best judgment. Against a disclosed taxable sales of oil of Rs. 10,563.50 and taxable turnover of khal of Rs. 2,901.86 the assessing authority completed the assessment on a combined turnover of Rs. 18,500 of sales of oil and khal, and on the turnover of Rs. 10,000 of first purchase of oil-seeds. It may be noted that the assessee had not admitted any tax liability on the purchases of oil-seeds. Being aggrieved by the assessment order, the assessee went up in appeal before the Assistant Commissioner (judicial), Sales Tax. The first appellate authority set aside the assessment with the direction to make the assessment afresh after further investigation. A second appeal against the order of remand at the instance of the assessee was dismissed by the Sales Tax Tribunal. Being still aggrieved, the assessee has now come up in this revision. From the orders passed by the appellate authorities it is evident that during the hearing of appeal before the Assistant Commissioner (judicial), Sales Tax, the department's representative moved an application se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined by the Sales Tax Officer, then either the learned Assistant Commissioner (Judicial), could consider those facts himself and enhance the turnover and tax assessed upon the appellant on that basis, or if in the interest of justice, he thought it fit to give an opportunity to the appellant to explain various entries therein before the assessing authority so that he may get a fair justice, then the same also cannot be held to be unjustified." The Tribunal also held that the remand in this case had not been made on whim or humour but was judicially sound. Section 9 of the Act sets out the powers of the Assistant Commissioner (Judicial), Sales Tax, while disposing of an appeal. A consideration of clause (a) of sub-section (3) of section 9 would show that jurisdiction of the appellate authority includes the power to confirm, reduce, enhance or annul the assessment whether such reduction or enhancement arises from a point raised in the grounds of appeal or otherwise. The appellate authority has also the power to set aside the assessment and direct the assessing authority to pass a fresh order after such inquiry as may be specified, or direct the assessing authority to make such i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pass a fresh assessment order after further investigation and inquiry. From the assessment order it is clear that the assessing officer has nowhere discussed the outcome of the material seized during the two surveys. Except for a mention that an exercise book was recovered containing 39 pages which contained business transactions for the years 1974-75 and 1975-76, no attempt was made to process the entries contained in that exercise book. There is nothing to suggest that the assessing authority had even attempted to find out the nature and value of the transactions contained therein, nor there is any finding in the assessment order to the effect that the assessee had been able to explain those documents to the satisfaction of the assessing officer. Even the entries and transactions pertaining to the two years were not sorted out to find out the transactions related to the year in dispute. In directing the remand of the case for fresh assessment the Assistant Commissioner (Judicial) has referred to this aspect, though not in details. He has further observed that turnover of taxable oil was nominally increased from Rs. 10,563.50 to 15,000 for the entire year when a single transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to call for a remand report from the assessing officer, but this by itself is not sufficient to hold that the discretion exercised by the Assistant Commissioner in setting aside the assessment was not warranted in the instant case. It is not a case where all the basic facts for disposal of the matter were already on record. It is a case where the assessing authority had failed to discharge its function of scrutinising the relevant material and the account books before making the assessment. In such a situation, it is not incumbent for the appellate authority to make the investigation itself. Where the appellate authority comes to the conclusion, as in this case, that in the ends of justice the matter should be set aside and remanded to the assessing officer for fresh examination to bring out correct facts, it cannot be held that such a decision of the appellate authority was motivated with irrelevant consideration or the power to set aside the assessment was exercised for an oblique motive with a view to provide a fresh inning to the Revenue. The decision of the Assistant Commissioner to remand the case for fresh assessment in the instant case was based on judicial considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o second part. In view of specific material the revising authority was within jurisdiction to enhance the turnover of the second part by six times. It cannot be said to be arbitrary or excessive." Where an assessment is set aside and the case is remanded for fresh assessment the assessing authority, subject to any direction of the appellate authority, has the same power as it originally had in making the assessment under section 7 of the Act. On the assessment being set aside with a direction to pass a fresh assessment order the proceeding in which the original assessment order was made is revived and the assessment in consequence to the remand has to be concluded afresh in accordance with the provisions applicable to it after making such inquiry as may have been directed by the appellate authority. In absence of any direction from the appellate authority in making the fresh assessment, the assessing officer is not bound by anything that had happened either when he made the original assessment or when the appeal was heard. He is bound to consider the entire case afresh and to take notice of fresh material which comes to his knowledge during further investigation before making the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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