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TMI Blog2000 (3) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... aders, Saharanpur, were disclosed. The dealer furnished his explanation to the show cause. The Deputy Commissioner, however, levied tax of Rs. 3,15,000 on escaped turnover of Rs. 50 lacs and further directed that the assessee was liable to pay interest at the rate of 2 per cent from August 1, 1984. Aggrieved by the order of the Deputy Commissioner, the dealer filed second appeal. The Tribunal partly allowed the appeal and by setting aside the order the Tribunal remanded the matter for rehearing by the Deputy Commissioner after observation and directions made in the body of the judgment. 2.. Aggrieved by the order of the Tribunal dated December 22, 1993, the dealer has filed the present revision. The sole point canvassed by Sri Bharatji Agrawal, learned Senior Counsel for the revisionist in support of the revision is that the Deputy Commissioner had no jurisdiction to initiate proceedings under section 10-B and hence, the order of remand is bad. The crux of his submission is that the assessing authority, by order dated September 7, 1989 held that there was no adverse material against the dealer and, therefore, the notice was discharged and original order of assessment dated April ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as he thinks fit. The provision of section 10-B(1) cannot be interpreted to mean to exclude from the scope of the powers of the revising Commissioner order passed by the assessing authority under section 21. It is true that in the case of Commissioner of Sales Tax v. Angan Lal Fakir Chand 1996 UPTC 1087, this Court had observed in para 10 of the judgment as follows: "The power of the revision has been conferred under section 10-B on the Commissioner and Deputy Commissioner. Obviously, this is not relatable to an order under section 21 where the assessing authority merely discharges the notice on a finding that it is not a case of escaped assessment. This power of revision was thus to be exercised by the Deputy Commissioner against the assessment order initially passed by the assessing authority." 4.. The facts in Commissioner of Sales Tax v. Angan Lal Fakir Chand 1996 UPTC 1087 were that the assessment order for the assessment year 1980-81 was passed on February 27, 1982. Notice under section 21 was issued on March 25, 1982. Thereafter notice under section 10-B was issued on August 20, 1988. The order under section 10-B was passed by the Commissioner holding that certain purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while partly allowing the appeal has observed that there was material on record of the assessment file regarding information sent by M/s. Star Paper Mills, Saharanpur, that the appellant had purchased paper against form III-B for a sum of Rs. 47,24,213 from M/s. Star Paper Mills. In view of this information, the discharge of the notice under section 21 by the assessing authority by order dated September 7, 1989 was not justified. The Tribunal further held that by discharging the notice, the assessing authority had committed illegality and impropriety and hence the Deputy Commissioner (Administration) had jurisdiction to revise the order dated September 7, 1989 passed under section 21. The order of remand was passed by the Tribunal on the ground that the explanation of the dealer was that he had given form III-B to the dalal and perhaps the dalal had given form III-B to M/s. Star Paper Mills and false entries of sale made to the present dealer were made. It was also represented on behalf of the dealer before the Tribunal that no opportunity to look into the books of accounts of M/s. Star Paper Mills and to cross-examine was afforded. The Tribunal had observed in its order on variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve remanded the matter to the assessing authority after setting aside the order dated September 7, 1989. In any case in view of findings of facts as recorded above, it is difficult to hold at this stage that after the order discharging notice under section 21 was passed by the assessing authority there remained nothing to be revised by the Deputy Commissioner or by invoking jurisdiction under section 10-B, the Commissioner had actually usurped the powers under section 21. There was apparent illegality and impropriety in the orders passed by the assessing authority while discharging the notice under section 21 as the facts disclose that no inquiry at all was made by the assessing authority in respect of alleged purchases made against form III-B from M/s. Star Paper Mills, Saharanpur. It was thus the illegality or impropriety in the order passed by the assessing authority which was sought to be revised by the Deputy Commissioner. 5.. The Tribunal has remanded the matter to the Deputy Commissioner for further examining the matter and to decide after giving the dealer opportunity in respect of the objections raised by the dealer. Here, to my mind, the Tribunal has committed error. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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