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TMI Blog2022 (10) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... ERALA [ 1981 (5) TMI 113 - KERALA HIGH COURT ] wherein, after referring to sub-section (2) to Section 105 of C.P.C, the Court in para 17 ultimately held The effect of non-filing of an appeal is that the finding is binding on the assessing authority when the case went back to that authority and also on the Appellate Assistant Commissioner while disposing of the appeal from the revised decision of the assessing authority. As far as the issue relating to branch transfer for which Section 6A exemption was denied by the Assessing Officer and confirmed by the Appellate Assistant Commissioner, the petitioner did not take it up on further appeal before the Appellate Tribunal. The facts on record indicate that the petitioner has not produced any documents to revise the assessment of tax in respect of the turnover of Rs.10,23,728/-. As far as the balance turnover of Rs.19,71,803/- which was remanded back to the Assessing Officer for verification is concerned, the order dated 31.12.2002 of the Assessing Officer indicates that there also the petitioner had not procured Form F - petitioner had produced only collateral evidence to substantiate stock transfer without producing Form-F fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments relating to the branch transfer not only for the remanded turnover of Rs.19,71,803/-, but also for the confirmed turnover of Rs.10,23,728/-. Since the first appellate authority had already confirmed the assessment on the turnover of Rs.10,23,728/- the assessing officer had not taken into consideration, the documents produced by the appellants. He had confirmed the assessment on this turnover when he passed fresh orders on 31.12.2002. It is the contention of the learned counsel for the appellants that the Commissioner of Commercial Taxes in the instructions issued in Acts Cell IV/41367/2000 dated 10.7.2000 had instructed the authorities to accept the declarations in Form F also and to rectify the assessment under section 55 of the Tamil Nadu General Sales Tax Act, 1959. Though the appellants had not produced the declarations in Form F, the other documents produced by them ought to have been admitted by the assessing authority and also the first appellate authority. But the claim of the learned counsel is found to be not acceptable. The instructions relied on by the learned counsel relates to declarations that are obtained and produced subsequent to original assessment. Even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein the above view was followed. 5. It was submitted that an issue which was not agitated by way of further appeal after the case was partly allowed and partly remanded by the First Appellate Authority back to the Original Authority, the Appellate Commissioner and the Tribunal could still decide the issue afresh notwithstanding the fact that no appeal was filed against the order of the First Appellate Authority dismissing the appeal partly and partly remanding the case back to the Assessing Officer. It is therefore submitted that the impugned order rejecting the prayer of the petitioner therefore deserves to be interfered with. 6. Per contra, learned Government Advocate (Taxes) would submit that the impugned order is well-reasoned and thus, it requires no interference. It is further submitted that the petitioner has no documents to substantiate that there were branch transfers. 7. It is further submitted that having given up their rights in the first round of litigation against the order dated 11.12.1998 of the Appellate Assistant Commissioner, it was not open to the petitioner to re-agitate the issue either at the stage when the case was taken up during remand or durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an earlier decision of this Court in S.Senniappa Mudaliar vs. The Government of Madras , (1965) ILR 2 Mad 397 apart from other decisions of various courts including that of the Hon'ble Supreme Court. This view was followed by the Division Bench of this Court in State of Tamil Nadu vs. Sharada Enterprises , (2019) 71 GSTR 107 (Mad.) cited by the learned counsel for the petitioner. 13. Earlier, the petitioner had suffered an assessment order at the hands of the second respondent Assessing Officer on 28.08.1996 wherein several issues including non-furnishing of Form - F on account of branch transfer was discussed and confirmed against the petitioner. Thus, exemption under Section 6A of the Central Sales Tax Act, 1956 was disallowed. 14. The petitioner preferred an appeal before the Appellate Assistant Commissioner (CT)-VI in AP.CST No.85/96. The Appellate Assistant Commissioner (CT)-VI, by his order dated 11.12.1998, partly dismissed the appeal and thereby confirmed the levy of tax in respect of turnover for branch transfer in absence of Form - F and other documents and partly remanded the case back to the Original Authority with the following observation:- 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enied by the Assessing Officer and confirmed by the Appellate Assistant Commissioner, the petitioner did not take it up on further appeal before the Appellate Tribunal. 16. Thereafter, the Additional Commercial Tax Officer on 31.12.2002 passed an order in the remand proceeding. Relevant portion of the order dated 31.12.2002 of the Original Assessing Authority reads as under:- 4. In pursuance of the order of the AAC (CT) VI, I have examined the reply of the dealer with the connected supporting documents in support of their claim of exemption on stock transfer. Accordingly, I confirm the levy of tax @ 11.6% on the turnover of Rs.6,67,585/- for which they have not filed any declaration in Form 'F' as ordered by AAC (CT), and other details regarding stock-transfer. Similarly, out of Rs.23,27,946/- the turnover of Rs.3,56,143/- are not covered by Form 'F' or by any other supporting documents. The AAC (CT) VI has also confirmed the levy of tax on the turnover of Rs.3,56,143/- @ 11.6%. For the remaining turnover of Rs.19,71,803/- as stock transfer, copies of invoices, lorry receipt, stock details of Pondicherry branch and assessment order of Pondicherry branch offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended provisions on the difference of tax paid as per Returns and tax paid as per final assessment: PENALTY PENALTY Penalty due 59,432 - 40.00 Penalty paid Nil Nil Balance 59,432- 40.00 Notice in Form 54 issued Tax Total due Rs.13,44,681.00 Paid Rs.12,25,818.00 Balance Rs. 1,18,863.00 17. Though the petitioner failed to challenge the order of the Appellate Assistant Commissioner dated 11.12.1998, insofar as, rejection of exemption under Section 6A(1) of the Central Sales Tax Act, 1956 is concerned, the fact remains that the benefit of branch transfer was partly allowed to the petitioner to the extent of Rs.19,71,803/- even though, the petitioner was not able to produce Form - F before the Assessing Officer pursuant to remand order as is evident from a reading of order dated 31.12.2002 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai. Here, it is clearly seen that the appellate authority has decided that the claim of exemption on certain turnovers preferred under Section 6A of the CST Act, 1956 is not in order, and apt to be rejected. The assessing authority has also not seen sufficient cause for reopening the assessment. In short, I do not find anything amiss in the action of the assessing authority in implementing the appeal orders and levying tax on the turnover of Rs.3,56,143/- confirming the tax already levied. However, the penalty levied in relation to those turnovers which was earlier remanded for reconsideration is not sustainable as per the decision of the Madras High Court in the case of Apollo Saline Pharmaceuticals Private Limited (2002) 125 STC 505. 7. In fine, the tax levied on the turnovers disputed is confirmed and the penalty of Rs.59,432 levied under Section 12(3)(b) of the Act vide the impugned proceedings is deleted. In fine, the AP.CST.31/2003 is modified . 20. Under Section 55 of the of the Tamil Nadu General Sales Tax Act, 1959 which is applicable for assessment under Central Sales Tax Act,1956, a five year window period is prescribed for revising the assessment. It reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfers. Once the case is remanded back, the order remanding the case back to the Original Authority is to be construed as an Interlocutory Order. While, it is not open for a Lower Authority to over look the direction of the Appellate Authority, the Higher Appellate Authority, such as the Appellate Tribunal can examine the case afresh in the light of the law settled by the Kerala High Court in M.Syed Alavi and Others vs. State of Kerala , (1981) 48 STC 150 (Ker) followed by this Court in State of Tamil Nadu vs. Sharada Enterprises , (2019) 71 GSTR 107 (Mad. 23. The Appellate Tribunal is the ultimate fact finding authority. Therefore, it was incumbent on the part of the Appellate Tribunal to have examined the claim based on the additional documents/evidence in the light of the law settled by the Kerala High Court in M.Syed Alavi and Others vs. State of Kerala , (1981) 48 STC 150 (Ker) followed by this Court in State of Tamil Nadu vs. Sharada Enterprises , (2019) 71 GSTR 107 (Mad.) 24. We are therefore of the view that the impugned order passed by the first respondent Appellate Tribunal is unsustainable and liable to be set aside. We, therefore remand the case back t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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