9911796707
TMI Blog1995 (5) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... h verification of some particulars, you are required to produce all books of account relating to your business for the years 1988-89 and 1989-90 and up to date before the undersigned on December 6, 1990, at 11 a.m. in the office of the Assistant Commissioner of Taxes, Nagaon Zone, Nagoan. Please note that for non-compliance of the notice action will be taken under the provisions of the Act. Books of accounts to be produced : 1. Cash book and ledger. 2. Bills and cash memos. 3. Purchase vouchers. 4. Stock accounts. 5. Returns submitted and copy of assessment order passed." 2. The petitioner prayed for time and the case was refixed on April 20, 1991. The case was further adjourned to May 3, 1991 and lastly it was fixed on May 17, 1991. On May 17, 1991, the petitioner filed an adjournment petition which was dated May 16, 1991. On May 30, 1991, this writ petition was filed by the petitioner challenging the notice dated November 29, 1990. The writ petition was admitted by the High Court and the operation of the notice dated November 29, 1990, was stayed. The Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther agents, etc., outside the State. Taxes were paid on jute so purchased within the State. While despatching outside the State being last purchaser within the State under the Assam Purchase Tax Act, 1967, such jute so despatched outside the State may also attract liability under the Central Sales Tax Act, 1956, if these are not despatched outside the State either on his own account or to his commission agent. Particulars received in check gate declarations from the case records shows clearly that he has got despatched outside the State to others than his own account which can well be settled to be a sale in the course of interState trade and commerce. Since the dealer failed to produce accounts and did not avail himself of the opportunities so offered from time to time I have got no other alternative but to determine the sales in the course of inter-State trade and commerce on the basis of entire purchase of the jute, so despatched periodwise outside the State adding 20 per cent charges as freight and another 15 per cent as profit and accordingly determined the sales under Central Sales Tax Act, 1956, during the period as follows: Periods Sales determined Purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated May 29, 1991, under section 31(1) of the Assam Act directing the assessing authority to register the petitioner No. 1 under the Central Sales Tax Act is wholly illegal, without jurisdiction and not tenable in law. (iv) That the Assistant Commissioner of Taxes has imposed its own finding on that of the finding arrived at by the Superintendent of Taxes without coming to the conclusion that the order passed by the Superintendent of Taxes on November 29, 1988, was erroneous in so far as it was prejudicial to the interest of Revenue and, as such, the impugned order dated May 29, 1991, is illegal without jurisdiction and not tenable in law. (v) That the Assistant Commissioner of Taxes was not justified in ignoring the adjournment petition filed on May 17, 1991, as well as his own order passed adjourning the case fixed on May 3, 1991 and refixing the same on May 12, 1991 and subsequently passing the impugned order under section 31(1) after rejecting the petition dated May 3, 1991, which was already allowed by him. (vi) That the impugned order having been passed after being aware of the order of this honourable Court passed on May 31, 1991, the impugned order dated May 29, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties, charging or payment of interest, compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly: Provided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, by rules made in this behalf make necessary provision for all or any of the matters specified in this sub-section." 7.. Dr. Saraf, learned advocate for the petitioner, submits that in exercise of the power under section 31(1) it cannot take cue from the Central Sales Tax Act. It can instruct the authority to take action in respect of the matters mentioned there, i.e., (i) to assess, (ii) to reassess and (iii) to collect and enforce payment of tax including any penalty. He submits that the procedure of registration is provided by section 7 of the Central Sales Tax Act and in section 31(1) read with section 9(2) of the Central Sales Tax Act, the authority is not entitled to pass an order for the registration of the dealer. 8.. The next submission of Dr. Saraf is that while going through the impugned order it will be seen that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act." 9. After this decision, section 9(2) was amended and the word penalty was inserted therein. This will show that the power under section 9(2) can be exercised by the State authority in respect of those matters specifically mentioned therein and not in respect of other matters. Registration is not a matter mentioned in section 9(2) of the Central Sales Tax Act and in that view of the matter in exercise of the power under section 31(1) of the Assam Sales Tax Act, 1947, the Assistant Commissioner of Taxes prima facie cannot be deemed to have the power to give order for registration under section 7(1) of the Central Sales Tax Act. 10.. The next contention of Dr. Saraf is against an order passed by the Superintendent of Taxes regarding registration. No revision lies under section 31(1) of the Assam Sales Tax Act, 1947 and in that connection Dr. Saraf submits that appeal or revision is the creature of the statute and when statute does not make any provision either for appeal or for revision, the authority cannot exercise that power and/or cannot delegate that power. He submits that against the order either allowing the registration or rejecting the prayer for registration, no a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer of revision, it is the fundamental principle of law that in exercising the power of revision, the authority is bound to consider only those materials and/or those records which were available before the subordinate authority. It cannot consider fresh materials or other things which were not before the subordinate authority. Dr. Saraf in support of this contention placed reliance in a number of decisions but it is not necessary to cite these decisions in the instant case inasmuch as that proposition of law is well-established. 12.. Next contention of Dr. Saraf is that going to the extreme even if it is held that the Assistant Commissioner of Taxes had all the powers inspite of it, it should not have passed the order in exercise of revisional powers fixing the quantum of sold property and give direction to the authority to assess the tax on the basis of the quantum determined by him. Dr. Saraf submits that this power is of the assessing authority and that power cannot be exercised by the revisional authority even if all the power rests with the Assistant Commissioner of Taxes and he submits that part of the order is absolutely without jurisdiction. 13. Next submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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