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TMI Blog2015 (1) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... s not merged with the Appellate order, then, it was duty bound to consider as to how the proceedings could be said to be barred by limitation - prima facie, the Tribunal could not have refused to refer the question of law which was squarely arising for this Court's opinion - That question is, if the doctrine of merger is inapplicable, the order of assessment is not sought to be revised but the order of the FAA, then, whether the Tribunal could have upheld the objection of limitation raised by the Assessee - This is the question of law and which could have been referred for opinion of this Court – thus, the order passed on 2nd May, 2014 is set aside and the Tribunal is directed to consider the refer on the question of law – Decided in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax (Appeal). That was made over to the Nasik Division and that Deputy Commissioner acting as a First Appellate Authority decided this Appeal on 29th November, 2006. 4. The Revenue was of the opinion that this First Appellate Authority has erroneously and wrongly not levied turnover tax under section 9 of the Bombay Sales Tax Act and sales of ₹ 43,25,22,390/- effected by the dealer against declaration in Form-14. He has also not levied surcharge under section 15-I-A on sales tax levied at ₹ 1,73,00,896/- on sales effected against declaration in same Form. 5. It is in these circumstances that the Additional Commissioner of Sales Tax exercised his powers under section 57 of the Bombay Sales Tax Act, 1959 to revise the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undable69,76,747/- 9,21,433/- Add-Interest granted/to be granted u/s. 43-A.12,55,814/- 1,65,858/- Balance net amount refundable82,32,561/- 10,87,297/- Less-Refund granted as per the Assessment Order is to be withdrawn.- 37,58,558/- Less-Refund granted as per Appeal Order is to be withdrawn.- 44,74,003/ Excess Refund granted as per assessment and Appeal Order is to be recovered.- 71,45,264/- Therefore, Assessing Authority is hereby directed to issue Demand Notice accordingly and recover the above dues as per provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vying turnover tax and surcharge u/s.9 and 15-I-A of B.S.T. Act respectively is set aside. The order of assessing authority is restored. No order as to costs. 7. It is from this Appeal/Appellate order of the Tribunal dated 1st October, 2012 that certain questions of law arise according to the Revenue. It made an application styled as Reference Application No.138/2010 requesting the Tribunal to refer the following questions of law for opinion and answer by this Court:- (1) Whether the Tribunal was justified in holding that the rest of assessment order was not merged in first appeal order, and hence the initiation of revision is beyond period of limitation, where in fact the appellate authority had touched the tax assessment part i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain amount? 8. This application has been dismissed on 2nd May, 2014 and in dismissing it, the Tribunal has held that its order dated 1st October, 2012 does not raise any question of law. We have perused this order and particularly para 7 and 8 thereof. As reproduced above, the order dated 1st October, 2012 allows the Appeal styled as Second Appeal of the Assessee against the revisional order only on the ground of limitation. The argument of merger has not been accepted by the Tribunal. However, in holding that the original order passed by the Assessing Officer on 31st March, 2004 is sought to be revised after the period prescribed in law that the issue of limitation was answered in favour of the Assessee and against the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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