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TMI Blog1990 (10) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... d additional tax under section 5-A in respect of the turnover falling within the purview of section 5-B of the Act. Normally we would not have entertained a writ petition when the revisional authority has not taken a final decision after considering the objections of the petitioner. However, as some of the contentions raised go to the root of the jurisdiction of the Commissioner to revise, we have thought it fit to adjudicate the matter in the interests of both parties rather than prolonging the litigation. The facts giving rise to this writ petition are as follows: The first assessment under the A.P. General Sales Tax Act for the year 1982-83 was made on March 31, 1984, by the Commercial Tax Officer. He subjected the turnover of Rs. 22,47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rranted. The assessee also contested the liability to pay the surcharge. The Deputy Commissioner, Secunderabad, by his order dated October 7, 1986, did not accept the first contention of the petitioner and he observed that there was no revised assessment order levying surcharge, which is factually an incorrect observation. However, with regard to the merits, the Deputy Commissioner accepted the contention of the petitioner and held that no surcharge is leviable in view of the decision of the Tribunal. The Deputy Commissioner, therefore, dropped the proposed revision. The Commissioner of Commercial Taxes issued a revision notice dated January 15, 1989 under section 20(1) of the Act proposing to set aside the order of the Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer of revision "shall not be exercised in respect of any issue or question which is the subject-matter of an appeal before or which was decided on appeal by the Appellate Tribunal under section 21". The bar enacted by sub-section (2-A) of section 20 on the revisional powers exercisable by the Commissioner or Deputy Commissioner does not apply to the instant case because the Appellate Tribunal has not decided any issue or question in an appeal relating to the petitioner much less the same assessment. In Minerals and Metals Trading Corporation of India Limited v. Deputy Commissioner, Commercial Taxes [1978] 42 STC 372, a Division Bench of this Court consisting of Divan, C.J. and Chennakesav Reddy, J., negatived the contention that section 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be applied in tax matters in relation to a different period of assessment. We are in agreement with the view expressed by the learned Judges in the above case. The idea underlying section 20(2-A) is to give finality and primacy to the decision of the Tribunal vis-a-vis an issue or question decided by the Tribunal in a lis between the same parties in respect of a particular period of assessment, subject, of course, to the result of a revision to the High Court. To construe it otherwise would lead to anomalous consequences. For instance, if the Appellate Tribunal has decided a particular issue or question in any case, it would for all the time to come, fetter the hands of the revisional authority from revising the order of the subordinate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that no such reassessment was made. However, he dropped the proposed revision on a different ground based upon the merits. Irrespective of the merits, the Deputy Commissioner could not have in any case revised the assessment so as to levy surcharge when the surcharge was in fact levied by then under a reassessment order dated September 11, 1985. The counsel further submits that the reassessment made by the Commercial Tax Officer having been set aside subsequently by the appellate authority, the Commissioner is incompetent to levy or direct the levy of surcharge merely by setting aside the revisional order of the Deputy Commissioner. We see force in this contention. In the face of the reassessment order passed by the Commercial Tax Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate order dated January 16, 1987 cannot be ignored by the Commissioner. In our view, so long as the order of the appellate authority stands, no demand for surcharge could be raised or directed to be raised. The desired effect of raising a demand for surcharge can only be brought about by revising the order of the appellate authority. But as the revision notice now stands, there is no such proposal. We, therefore, deem it fit to issue a writ prohibiting the Commissioner from proceeding with the levy of surcharge pursuant to the impugned notice. However, we leave it open to the Commissioner, if he so chooses to initiate fresh proceedings for the purpose of revising the order of the appellate authority dated January 16, 1987. Then we come to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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