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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 ..... d by the first Appellate Authority and the Tribunal were finalised by the order dated 04.02.2008 (Annexure-F), which was not challenged in a statutory appeal. If there was such a challenge made, going by the Full Bench decision, the issues decided by the first Appellate Authority with respect to From 25A, could have been agitated before the Tribunal and the issue of stock transfer decided by the Tribunal and remanded for computation, could have been agitated in all its aspects before the High Court. The assessee failed to challenge the order dated 04.02.2008. The issues having been resolved finally and the order having acquired finality by sheer passage of time, an appeal from the order dated 10.03.2010 could not agitate those issues settled by that earlier order dated 04.02.2008. The order dated 04.02.2008 had acquired finality for no appeal having been preferred therefrom. The question of law framed, hence is answered in favour of the revenue - revision dismissed. - ST. Rev. 2/2014 And ST. Rev. 3/2014 - - - Dated:- 15-2-2019 - MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ. For The Petitioner : ADVS. SRI. M. GOPIKRISHNAN NAMBIAR, SRI. K. JOHN MATHAI, SRI. KURYAN THOMAS, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the Hon'ble Supreme Court is reported in IFB Industries and Others v. State of Kerala and Others [2012 49 VST I (SC)] dated 27.02.2012 . 4. In the meanwhile, two orders were passed by the Assessing Officer, from which the present dispute arise. While the appeal on the issue of trade discount was pending before the High Court, the Assessing Officer gave effect to the order of the First Appellate Authority (Ann:D) and the Appellate Tribunal (Ann:E) on 04.02.2008, by order produced as Annexure F. The issue of Form 25A and stock transfer were both against the assessee as per the computation directed, respectively by the first Appellate Authority and the Appellate Tribunal. 5. Subsequently, when the challenge to the judgment of the High Court was pending before the Hon'ble Supreme Court, with respect to the trade discount, the Assessing Officer gave effect to the order of the High Court on 10.03.2010; by order produced as Annexure-H. The assessee in the present proceedings filed appeal from Annexure H order dated 10.03.2010. The question of law raised is, whether in an appeal from the order dated 10.03.2010, the assessee could agitate the issues, which were consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged in an appeal from the order giving effect to the remand. We, respectfully bow to the said proposition as laid down by the Full Bench, but find the same to have absolutely no application in the present case. 8. Sri.Kurian, learned Counsel appearing for the assessee would also argue that when a remand order was made by the High Court and when an order is passed giving effect to the order of remand, necessarily, the earlier order passed on 04.02.2008 gets merged with the order passed on 10.03.2010. An appeal could be maintained on all the issues that gets incorporated in the order dated 10.03.2010. 9. The argument of merger of the order of the Assessing Officer dated 04.02.2008 with the order of the Assessing Officer itself, dated 10.03.2010, is only to be stated, to be rejected. The doctrine of merger has application when there are two orders, one by the inferior authority and the other by a superior authority, that too only when the subject mater of the two orders are identical. 10. On the question of merger, Commissioner of Income Tax v. Amritlal Bhogilal and Company [(1958) 34 ITR 130 (SC)] said so:- There can be no doubt that, if an appeal is provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period for appeal is over. The subsequent order passed on 10.03.2010 confined itself to the issue of trade discount. The appeal from the order dated 10.03.2010 could only be maintained on the issue of trade discount even going by the cited Full Bench decision. 12. We fully agree with Sri.Shamsudheen, insofar as the issues decided in order dated 04.02.2008 being not susceptible to challenge from an appeal from the order dated 10.03.2010. On the question of Form 25A, we notice from Annexure-D that the issue agitated by the assessee was that the assessee being a first seller, Form 25A was not required, to claim liability to tax on 5th schedule goods confined to the first point of sale. However, the first Appellate Authority found that the appellant assessee is only eligible for the claim of reduced rate of tax on the sales turn over of first sale of 5th schedule items to the extent it is supported by Form 25A. Considering the fact that the assessee had produced Form 25A declarations for the periods 2001-02 and 2002-03, an order of remand was made for verification as to the genuineness and admissibility of such forms produced before the first Appellate Authority. As rightly argued b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t against the assessee especially since the Full Bench had noticed that assessee could raise all contentions in an appeal from the order giving effect to the remand, only if no appeal was provided or when an appeal is provided; it has not been availed. We however, are not inclined to accept the said contention, since admittedly in the Cross Objection the assessse did not challenge the order of remand and in any event, that specific issue has not been considered by the Appellate Tribunal in Annexure-E order. This would be a situation where there is an appeal provided, which remedy has not been availed; atleast with respect to the remanded issue. 17. Looking at Annexure-E order, we find that the assessee had produced F-Forms for the stock transfer carried out. The issue was whether the Assessing Officer could have declined the F-forms for reason of no further evidence having been produced. It is an accepted position that F-form is only one mode of evidence to substantiate a stock transfer and when a suspicion is raised by the Assessing Officer as to the movement of goods, then the assessee would have to produce further evidence to prove such movement from one place to another as h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.03.2010 cannot be sustained. 20. Sri.Kurian, learned Counsel appearing for the assessee has a further contention that there was an open remand made by the Hon'ble Supreme Court. We are not convinced that such a remand was made as seen from the judgment of the Hon'ble Supreme Court in IFB Industries and Others , the operative portion of which is extracted herein below:- 28. On the basis of the discussions made above and in the light of the earlier decisions of the Court, we are unable to sustain the orders of the Kerala High Court coming under appeal. The impugned orders in both the appeals are set aside. The cases of the appellants for the respective assessment periods are remitted to the assessing authority with a direction to make assessments and pass fresh orders in accordance with law and in the light of this judgment. The assessing authority shall not reject the appellants claim for exemption of the amounts of trade discount solely on the ground that the discount amounts were not shown in the sale invoices. 21. It is clear that the direction was to make assessment and pass fresh orders in accordance with law and in the light of the judgment. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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