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TMI Blog2016 (12) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 place in the year 1996-1997. Therefore at the relevant time when the transaction took place i.e. for the relevant year 1996-97 the determination order was passed under Section 62 of the Act on 22.3.1985 and the same was in force and in existence. Therefore the assessee charged and consequently paid the sales tax treating the goods in question falling under Entry No.113 (considering the earlier determination order dated 22.3.1985). However it appears that no final assessment order was passed till 2000. It appears that the Assessing Officer determined the tax liability as per the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 consequently pay the sales tax considering the position prevailing at the time of transaction of sale i.e. in the present case, considering the binding determination order under Section 62 of the Act dated 22.3.1985, and in that case, if, on the subsequent determination order i.e. subsequent to the transaction, if the liability to pay the tax is determined on the basis of subsequent determination order and in that case thereafter it will be very difficult for the trader to recover the difference in sales tax from the consumer. 3.4 Learned advocate appearing for the appellant has also drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 would not only bind the concerned traders at whose instance the reference was made but would also bind the State Sales Tax Department which was a party before the Commissioner of Sales Tax. 6.1 Similar view has been taken by the Bombay High Court while considering the parimateria provision i.e. Section 52 of the Bombay Sales Tax Act, 1959, prevailing at the relevant time, and in para 11 the Division Bench has observed and held as under: "Mr. Chougale also submitted that a decision of the Commissioner given under section 52(1) of the said Act had no binding effect and the Sales Tax Officer was not boun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 a Sales Tax Officer when a case of another person who carries on the identical activity comes before him to hold that by reason of the carrying on of such activity that other person is a dealer." 7. Considering the aforesaid, at the time when the transaction took place in the year 1996-97 the determination order dated 22.3.1985 was in existence and in force and was binding to all. The next question which is required to be considered that what will be the effect of the second determination order passed under Section 62 of the Act, and whether the second determination order shall be applicable with respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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