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TMI Blog2019 (3) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... ues afresh after hearing the assessee. The Assessing Officer heard the assessee and passed fresh orders on 27.01.2006 for the year 2001-2002 and 28.01.2006 for the year 2002-2003; which are produced in the respective appeals as Annexure C. There is no controversy till this modified order of assessment. 3. The assessee took up the matter in further appeal, wherein on certain issues, the assessee's appeal was allowed and on the question of production of Form 25A, the issue was remanded. The dispute so to say starts from this order of remand dated 28.04.2006, produced as Annexure D. The State filed an appeal from this order before the Appellate Tribunal, which did not touch upon the issue remanded by the First Appellate Authority. The Appellate Tribunal passed an order in the second appeal on 28.02.2007, which is produced as Annexure E. We are now concerned only with the issue of stock transfer as raised in the above appeal on which there was a remand. Among others, there was also an issue of whether a trade discount can be claimed as reduction, which was decided against the assessee. The assessee filed an appeal from the order of the Appellate Tribunal [Annexure E] before the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but the assessee did not choose to file an appeal from the decision on its liability to be assessed, which was decided against the assessee in first appeal. Later, when the order of remand was given effect to and an appeal filed there from, the assessee again agitated the question of its liability under the sales tax enactment. The first Appellate Authority and the Tribunal found that the assessee having not challenged the order of remand, Section 105(2) of the Code of Civil Procedure, 1908 applied. The issue having been already considered and decided against the assessee, there would be res judicata, insofar as the issue being raised again, held the lower authorities. 7. The Full Bench looked at Section 105 and found that sub-section (2) was introduced later. It was found that sub-section (1) of Section 105 reflected the general law applicable, insofar as a remand order being considered an interim order and any findings therein being susceptible to a challenge, when an appeal is filed from the order giving effect to remand. Sub-section(2) of Section 105 having been later introduced into the CPC, the general law applicable insofar as the statutory remedies under the sales tax en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach case and the scope of the statutory provisions, conferring the appellate or revisional jurisdiction. Kunhaymmed and Others v. State of Kerala and Another [(2006) SCC 359] held "the logic underlying the doctrine of merger is that, there cannot be more than one decree or operative orders governing the same subject matter at a given point of time.(sic)". There can be no doctrine of merger applied here, for the simple reason that the orders of the Assessing Officer dated 04.02.2008 and 10.03.2010 are with respect to different subject matters. The order of 04.02.2008 gave effect to (i) the first Appellate Authorities order on Form 25A and (ii) the Tribunal's order on stock transfer. The order dated 10.03.2010 gave effect to the judgment of the High Court on trade discount. 11. The learned Senior Government Pleader, Sri.Shamsudheen would, specifically point to the orders and argue that there was no open remand made either by the first Appellate Authority or the Tribunal. Specific findings were rendered on the issues raised and computation alone was directed to be redone. The Assessment Order passed on 04.02.2008 gave effect to the appellate orders, which were on proper computat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of whether Form 25A was required for the claim of reduced rate, when the assessee is established to be the first seller. 14. However, the assessee had not filed an appeal from the order dated 04.02.2008. The appeal filed was from an order giving effect to a decision of the High Court on one single issue ie: trade discount. The assessee having not challenged the order dated 04.02.2008, the issues, which were settled by the order of the First Appellate Authority dated 28.04.2006, which was given effect to by order dated 04.02.2008, could not have been agitated in an appeal from the later order, giving effect to the judgment of the High Court on a totally different issue. 15. We here notice that the issue of requirement of Form 25A for the first seller to be absolved of the levy at the last point was decided in the negative and in favour of the assessee by State of Kerala Vs. Godrej Appliances Ltd. [2010] 29 VST 247 (Ker.) on 08.06.2008 and if an appeal from the order dated 04.02.2008 was filed it would definitely have gone in the assesses favour. The assessee having not availed the remedy the issue stands finalised on the expiry of the period for filing appeal. 16. The furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se a suspicion on the genuineness of the stock transfer claimed, upon which, the assessee was obliged to produce further evidence to substantiate the movement of goods. This was what was found by the Tribunal. 18. The Tribunal found that the Assessing Officer had merely declined consideration of the F-forms. It was directed that an enquiry be conducted and if a suspicion is raised, the assessee would have to produce further documents. The order of remand at Annexure-E was again given effect to, by order dated 04.02.2008, wherein the issue of Form 25A was also given effect to. The assessee if had filed an appeal from the order dated 04.02.2008, could have raised all grounds; even those found against the assessee by the Tribunal and first Appellate Authority and their orders of remand; in that appeal. The assessee failed to appeal from the order passed on remand. The appeal was from the subsequent order dated 10.03.2010, which gave effect to the judgment of the High Court. 19. In the appeal, from the order dated 10.03.2010; which gave effect to the decision of the High Court, we have already found that the questions decided in the First Appellate Authority's remand and given ef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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