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TMI Blog2007 (5) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... with law. Subsequently, the assessing officer, on verification of claim for exemption with regard to the consignment sales found them to be incorrect. It was discovered that form F claiming exemption on the basis thereof that the transaction in questions was consignment sale was found to be incorrect as it was discovered by the Department that the respective dealers were never issued the said form F by their Sales Tax Department. The Trade Tax Department, thus, formed an opinion that the turnover of the dealer-opposite party has escaped assessment taking into consideration the entire facts and circumstances of case as well as the letter written by the Sales Tax Officer, Ward 61, New Delhi, informing about the cancellation of registration of S/s. Garg Trading Company, Subhash Park, who allegedly issued the said form F to the dealer-opposite party herein and issued four notices under section 21 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act") for the aforesaid two assessment years under (U.P.) and (Central), after obtaining the permission as required thereunder from the concerned authority. The Deputy Commissioner (Assessment) 7, Trade Tax, Kanpur, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances of the case, the Trade Tax Tribunal was justified in holding that discharging notice under section 21 is not an order and cannot be revised under section 10B? 3.. Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was justified in overlooking the distinction between section 21(1) and 21(2) because Explanation III of subsection (1) is not applicable in subsection (2)? 4.. Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was justified in holding that the order passed by the assessing authority on May 29, 2003 is not an order which is revisable under section 10B? All the above questions of law can be recomposed and compressed by reframing them in the following questions: 1.. The proceeding initiated under section 21 of the Act which was subsequently dropped by an order (in the present case dated May 29, 2003), is in the ambit of "any order" as envisaged under section 10B of the Act. 2.. Whether, on the facts and in the circumstances of the case, the period of limitation for initiation of proceedings under section 10B of the Act would start running from the date of original assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the parties, in support of their respective stands, repeatedly relied upon Kundan Lal Srikishan v. Commissioner of Sales Tax, U.P. [1987] 65 STC 62 (SC); AIR 1987 SC 793; [1987] UPTC 404. Briefly the facts of the said case may be noted. An order of assessment was passed on February 7, 1979. It was followed by issuance of a notice dated January 8, 1980 under section 21 of the Act proposing to make reassessment in respect of the relevant assessment year. The Sales Tax Officer, after taking into consideration the facts of the case, passed an order holding that the assessee therein was not liable to pay any more tax under the Act. The said order is dated January 18, 1980. Subsequently, the assessee therein in the year 1982 filed an application under section 22 of the Act for rectification of mistake on certain grounds. A question arose as to whether the period of limitation for filing such application under section 22 of the Act would start from the date of the original assessment order, i.e., February 7, 1979 or from the date of discharging the notice under section 21 of the Act, i.e., January 18, 1980. It was contended on behalf of the assessee therein that on the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary, assess or reassess the dealer or tax according to law. The assessing authority gets jurisdiction to make the reassessment by issuing a notice to the dealer as provided by section 21 of the Act. When once the notice is issued under that section the original order of assessment gets reopened and thereafter any order made under section 21 of the Act alone would be the order of assessment in respect of the period in question. Section 21 of the Act does not require the assessing authority to pass an order deciding whether it is necessary to proceed with the inquiry under that section or not before passing an order of assessment or reassessment under that section. The only order which the assessing authority is required to make under section 21 after a notice is issued to the dealer under that section is an order of assessment or reassessment. It is not required to pass first an order whether it should proceed with the reassessment proceedings or not. Such a preliminary order is not contemplated under section 21 of the Act. Hence the order dated January 18, 1980 has to be treated as an order of assessment even though it is not in the form in which an order of assessment has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary of English Language at page 1567, Column II is--(1) "up to the time . . . (2) before . . ., (3) onward to or till . . ." The contention of the dealer is that in view of the Explanation III to section 21, referred to above and taking into consideration the Statement of Objects and Reasons of the amending Act, it is clear that the said Explanation was inserted with a view to fill up the vacuum which was created by the judgment of the apex court in the case of Kundan Lal Srikishan [1987] 65 STC 62; AIR 1987 SC 793; [1987] UPTC 404. To put it differently, in substance, the argument is that in view of insertion of Explanation III the law laid down by the apex court in the case of Kundan Lal Srikishan [1987] 65 STC 62; AIR 1987 SC 793; [1987] UPTC 404 is no longer open to any party to place any reliance upon it. In support of the aforesaid argument strong reliance is being placed on Ceat Tyres of India Limited [1997] 106 STC 95 (All); [1997] UPTC 305. The controversy involved in the case of Ceat Tyres of India Limited [1997] 106 STC 95 (All); [1997] UPTC 305 as noted in paras 3 and 4 of the Report was that the assessment order was passed on March 26, 1984 and the reassess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not cease to exist." On a close reading of the aforesaid paragraph which was strongly relied upon by the learned counsel for the dealer it is axiomatic that the plea of limitation was not at all involved in the above case. Only this much was said therein that an order of reassessment under section 21 and orders discharging the notice under section 21 or in any other manner showing that no turnover has escaped assessment would not be orders of assessment so as to wipe out the earlier order of the assessment. The said judgment, therefore, is no authority for the proposition from what point the period of limitation will start running. The question of period of limitation was not in issue therein even remotely. Only this much was said that the order discharging the notice under section 21 is an order and it would not be an order of assessment. The said decision does not advance the case of the dealer-opposite party. The Explanation III has modified the proposition laid down by the apex court in the case of Kundan Lal Srikishan [1987] 65 STC 62; AIR 1987 SC 793; [1987] UPTC 404 to a limited extent. Wide proposition as canvassed by the learned counsel for the dealer that for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears to us that this rule is equally applicable to the construction of article 286 of our Constitution. In order to properly interpret the provisions of that article it is, therefore, necessary to consider how the matter stood immediately before the Constitution came into force, what the mischief was for which the old law did not provide and the remedy which has been provided by the Constitution to cure that mischief." The aforesaid Explanation was added keeping in view that an unscrupulous dealer may not claim that as soon as the assessment is reopened by issuance of notice under section 21 of the Act to refund tax deposited by him in pursuance of the assessment order pleading--no assessment no liability. The Explanation III has limited field of operation, to the extent stated above. At this stage another limb of the argument of the dealer may be noted. The learned counsel for the dealer submits that if an order dropping proceeding under section 21 is passed, it would mean as if it has been passed on the date when the original assessment order was passed. In other words, order passed subsequently, according to him would be deemed to have been passed on the date of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said order it is clear that the assessing authority examined the account books of the dealer, considered the earlier original assessment order dated February 27, 1999 and the fact that on a certain turnover exemption was granted and the plea of the dealer that it was stock transfer and the information received by the department that such turnover is not stock transfer as also applied its mind to the certain rulings relied upon by the dealer held that the dealer cannot be faulted if form F given by his counterpart was not issued by the concerned Sales Tax Department, is nothing but an "order" as understood in legal parlance. By no stretch of imagination, it is other than an order. The word "order" is not a term of art. It has no fixed legal meaning. "Order" as known has been held equivalent to or synonymous of "decision". The apex court in G.C. Ghanshamdas v. Collector of Madras AIR 1987 SC 180 has held that an order need not be an order of civil court only, it can be of any statutory authority. The Full Bench of this court while interpreting word "order" in section 26(2) of the Evacuee Property Act has held that it is used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roud, interlocutory order means an order other than a final judgment. This was the view taken in the case of Smith v. Cowell [1880] 6 QBD 75 and followed in Manchester and Liverpool Bank v. Parkinson [1889] 22 QBD 175. Similarly, the term 'final order' has been defined in volume 2 of the same Dictionary (page 1037) thus: 'The judgment of a Divisional Court on an appeal from a county court in an interpleader issue, was a "final order" within the old R.S. C., Ord. 58, R. 3 (Hughes v. Little [1886] 18 QBD 32); so was an order on further consideration (Cummins v. Herron [1877] 4 Ch. D. 787); unless action was not thereby concluded. . . But an order under the old R. S.C., order 25, R. 3, dismissing an action on a point of law raised by the pleadings was not "final" within the old order 58, R. 3, because had the decisions been the other way the action would have proceeded.' Halsbury's Laws of England (Third Edition, Volume 22, pp. 743744) describes an interlocutory or final order thus: 'Interlocutory judgment or order: An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously defined. It refers to all orders, rulings, and decisions made by the trial court from the inception of an (1)Here italicised. action to its final determination. It means, not that which decides the cause, but that which only settles some intervening matter relating to the cause. An interlocutory order is an order entered pending a cause deciding some point or matter essential to the progress of the suit and collateral to the issues formed by the pleadings and not a final decision or judgment on the matter in issue . . . . . An intermediate order has been defined as one made between the commencement of an action and the entry of the judgment.' 22.. To sum up, the essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. Untwalia, J., in the case of Madhu Limaye v. State of Maharashtra [1977] 4 SCC 55 clearly meant to convey that an order framing charge is not an interlocutory order but is an inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the nature of adversary system. To plug the leakage of revenue such powers are usually conferred in fiscal statutes on the higher authorities to revise an order passed by its subordinate, in the interest of revenue and to keep a balance between the interest of Revenue and that of a dealer. Under the scheme of the U.P. Trade Tax Act, like other Sales Tax Act, no appeal is provided for against an assessment order or any order passed by assessing authority, to the department. To maintain balance of conferment of power the higher officials of the department are given such powers to check errors committed by their subordinates. The interpretation of word "any" came up for consideration before the apex court in Lucknow Development Authority v. M.K. Gupta [1994] 1 SCC 243 and it is held: "The word 'any' dictionarily means 'one or some or all' . . . . The use of the word 'any' in the context it has been used in clause (o) indicates that it has been used wider sense extending from one to all." In Shri Balaganesan Metals v. M.N. Shanmugham Chetty [1987] 2 SCC 707, the apex court after making a reference to the meaning ascribed to the word in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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