9911796707
TMI Blog2016 (12) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has preferred the present tax appeal to consider the following substantial question of law: Whether on the facts and circumstances of the case, the Gujarat Value Added Tax Tribunal was justified in law in holding that under Section 62 of the Act, where there are two determination orders; the first will not hold the field till the second order? 2. The facts leading to the present tax appeal in nutshell are as under: 2.1 That with respect to the goods in question there was already a determination order passed by the Commissioner, passed under Section 62 of the Gujarat Sales Tax Act, 1969 (for short the Act ) vide order dated 22.3.1985 by which the goods in question was held to be falling in Entry No.113. Subsequently vide order dated 24.3.1999, by another determination order under Section 62 of the Act, the earlier view expressed in the earlier determination order was not accepted and the goods in question was held to be falling in Entry No.96 i.e. electric goods. At this stage it is required to be noted that there is a difference in the rate of tax between the goods falling under Entry No.113 and the goods falling under Entry No.96. The transaction took pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the Act dated 22.3.1985 was in force, and as per the catena of decisions, the same was binding to all including the assessee as well as the department. 3.2 It is submitted by Mr. Tanvish Bhatt, learned advocate appearing for the appellant that therefore when the liability to pay the sales tax arises on transaction and/or sale, the position which is prevailing at the time when the transaction/sale took place is required to be considered. It is submitted that therefore in the present case when the transaction/sale took place in the year 1996-97, the position prevailing at that time was required to be considered and, therefore, the tax liability was required to be considered and determined as per the earlier determination order under Section 62 of the Act i.e. 22.3.1985. 3.3 It is further submitted by learned advocate for the appellant that the first determination order would be valid till the fresh subsequent order is passed under Section 62 of the Act and the subsequent determination order shall not affect the liability to pay the tax on earlier transaction i.e. prior to the subsequent determination order. It is submitted that, in a given case, a trader may recover and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of the department. 5. Heard the learned advocates appearing for the respective parties at length. 6. The short but an interesting question of law posed for consideration before this Court is : when under Section 62 of the Act, there are two determination orders; the first will hold the field till the second determination order is passed or not? While answering, the aforesaid question it is required to be considered whether the determination order passed under Section 62 of the Act may be in the case of some another trader/assessee is binding to the department. If any decision is required on the aforesaid, one decision is of the Division Bench of this Court in the case of State of Gujarat v. Mahavir Engineering and Electric Stores in Sales Tax Reference No.2 of 2003 and another decision is of the Division Bench of the Bombay High Court in the case of Kulko Engineering Works Limited v. The State of Maharashtra in Sales Tax Reference No. 39 of 1977 [MANU/MH/0235/1979]. While considering the scope and ambit of Section 62 of the Act, the Division Bench of this Court in the case of Mahavir Engineering and Electric Stores (supra) has specifically observed that the orders wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide a remedy by way of appeal and revision to the party aggrieved by an order. Whether a decision of the Commissioner under section 52(1) has a binding force or not would depend upon the nature and scope of that order. If a particular question submitted to the Commissioner for his determination under section 52 has been determined by him upon an interpretation of a provision in the said Act or the Rules made under it, it cannot be open to a Sales Tax Officer in another proceeding to ignore that interpretation and place his own interpretation upon that particular provision contrary to or different from the interpretation placed by the Commissioner. Similarly, if a question has been decided by the Commissioner on certain facts placed before him and in another proceeding before a Sales Tax Officer the facts of the case are identical with the facts of the case before the Commissioner, the Sales Tax Officer cannot decide that case otherwise than according to the determination given by the Commissioner. For example, if in determination proceedings under section 52 the Commissioner has held that a person who carries on a particular activity if not a dealer, it would not be open to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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