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TMI Blog2001 (6) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer that three dealers from whom the assessee claimed to have made purchases of used engine oil, were found to be fictitious. Thereafter, against the said revised assessment orders dated June 30, 1994 as well as the provisional assessment order for 1993-94, the assessee preferred the appeals before the Appellate Deputy Commissioner (CT), Vijayawada. The Appellate Deputy Commissioner, after hearing the counsel for the petitioner set aside the revised assessment orders for 1989-90 to 1992-93 and the provisional assessment for 1993-94 and remitted the matter back to the assessing officer for fresh consideration. Thereafter, the Commercial Tax Officer framed assessments on January 3, 1995 for all the years in question granting exemption of the disputed turnover. These assessment orders were subjected to revision by the Deputy Commissioner (CT), No. II, Vijayawada, by his orders dated August 18, 1987. As per the said orders, the assessee-dealer is not entitled for the exemption, as the dealer did not produce evidence to satisfy the authorities that he had purchased the used engine oil as and by way of second sale. Hence, the exemption granted by the assessing officer was erroneous an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve and therefore, the order of the Deputy Commissioner (CT) as well as the orders of the Appellate Tribunal are liable to be set aside. 4.. We have heard the learned counsel for the petitioner and considered the material on record. 5.. The only grievance of the petitioner is that the revisional power exercised by the Deputy Commissioner under sub-section (2) of section 20 of the Act in revising the orders of the assessments dated January 3, 1995 is without jurisdiction. According to the learned counsel, the said assessment orders were framed, giving effect to the orders of the Appellate Deputy Commissioner dated December 13, 1994, hence the impugned orders are liable to be set aside. 6.. The assessee was dealing with the purchase of used engine oils within the State of Andhra Pradesh and used to process/reclaim the same and sells the reclaimed engine oil to various consumers. It is also the case of the petitioner/dealer that engine oil is liable to tax only at the first sale in the State, under item 39 of the First Schedule to the Andhra Pradesh General Sales Tax Act, 1957 and not on the subsequent transactions. When the assessee claimed on that basis exemption of its turno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indo-Burma Petroleum Company. The rejection of this material by the assessing authority seems to be arbitrary without allowing the appellants to prove their claim of exemption and without verifying the tax payments at the point of first sale by the oil companies. It is in the interests of natural justice that the assessing authority shall accord sufficient and further opportunity to the appellants if so desired, to file additional material in the attempts to prove that they are other than the first sellers. The assessing authority shall also verify and consider the bills produced by the appellants for granting exemption when it could be proved that the purchases made by the appellants were taxed at the point of first sale. The assessing authority shall pass fresh orders keeping in mind the above guidelines and case law. Accordingly to the revisionary and provisional assessments made by the assessing authority are set aside and the matter is remitted back to the assessing authority for fresh disposal giving an opportunity to the appellants to prove themselves that they are other than first sellers." 7.. Thereafter, the assessments were taken on by the Commercial Tax Officer befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iterated the same contention. It was also contended that as the Appellate Deputy Commissioner's order has become final, without setting aside the said order of the Appellate Deputy Commissioner, it is not open to the authorities under the Act, to revise the orders of assessment. The Appellate Tribunal rejected the said contention for the reason: "The said orders of the assessing authority pursuant to the remand order of the first appellate authority is an independent order of the assessing authority based on the evidence available before him and as, that evidence interpreted by him. Had the assessing authority given a finding against the dealer/assessee that is to say that the dealer has failed to establish that the disputed oils have already suffered tax necessarily the appellant dealer would have filed an appeal as provided under section 19 of the Andhra Pradesh General Sales Tax Act, 1957 to the first appellate authority again. The revisions contemplated under section 20 of the Andhra Pradesh General Sales Tax Act, 1957 always provide where an order is prejudicial to the revenue the superior authority can always take a revision. When the orders of the assessing authority were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be treated as first sales is not necessary to be considered in this case because it is not the case of the department that sale of reclamated oil is to be treated as first sales. Therefore, for all these reasons, we are of the opinion that the appellant has not produced the evidence to establish that the oils purchased and sold by him have suffered tax. Consequently, we find there is no justification in interfering with the revisional orders for the reasons mentioned above. Hence, the point is held accordingly." 8.. Assailing the above finding, the learned counsel reiterated the contention that when the order of the Appellate Deputy Commissioner has become final, it is not open to revise the order of the Commercial Tax Officer. We are unable to appreciate the said contention of the learned counsel for more than one reason. The Appellate Deputy Commissioner did not decide the issue on merit one way or other, but the findings recorded by him clearly show that in order to give opportunity to the petitioner/dealer, the matter was remitted to the assessing officer, so that it can produce necessary evidence for showing that the purchases made by the assessee in question relates to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 5-B. As the matter stood thus, the Deputy Commissioner proposed to exercise revisional powers under section 20(2) of the Act, whereby he wanted to set aside the original assessment order dated March 31, 1984, passed by the Commercial Tax Officer so as to add surcharge to the tax otherwise payable. A show cause notice was issued by the Deputy Commissioner dated May 14, 1986. The petitioner filed objections stating that the original assessment order was no longer in existence in view of the reassessment order passed subsequently and, therefore, the revision was unwarranted. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the revision of original assessment order for the purpose of imposing surcharge when the surcharge was already levied by then by a reassessment order. Evidently, the Deputy Commissioner did not touch upon the revised assessment order at that time as he was under the mistaken impression that no reassessment was at all made in relation to surcharge. Secondly, the force and effect of the appellate 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." 10.. A perusal of the above judgment clearly shows that in that c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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