BHGWATI TRADERS Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) With the consent of the parties this writ petition has been taken up for final disposal. Undisputed facts of the case are that the petitioner/dealer was granted registration under Delhi Sales Tax and Central Sales Tax with effect from 11.5.1988. The registration was cancelled on 29.12.1989. An ex pane assessment order dated 7.3.1994 was passed by Assessing Officer against the petitioner holding him liable to pay sales tax under Delhi Sales Tax to the tune of Rs. 1,50,97,500/- and under Central Sales Tax a sum of Rs. 9.90.000/-. A penalty of Rs. 2,000/- was imposed in each case for not filing the returns. The assessment order was passed on the basis of best judgment'. Petitioner had got issued 401 ST-35 forms-148 ST-1 forms-4F forms-5C forms during the period of registration. The Assessing Officer, while passing assessment order on the basis of best judgment', considered the full value of these forms and assessed gross turnover of the petitioner at Rs. 30,29,40,0007- for Delhi Sales Tax Act and Rs. 9,90,000/- for Central Sales Tax Act, taking the value of each ST-1/ST-35 forms at Rs. 5,00,000/- and C and F forms at Rs. 1,00,000/-. After this exparte 'best judgment' assessment order, petitioner filed a complaint with the Anti-corruption Department. His plea was that he had deposited duly utilized ST-I and 35 forms with the Assessing Officer, butthe AssessingOfficer did not take the forms into account and ST-1/35, F and C forms were still lying in Assessing Officer's almirah. A raid was conducted by Anti-corruption Officials at the office of the Assessing Officer on 28.3.1994 and a large number of ST-I. ST-35 and other forms belonging to the petitioner were recovered by the Anti-corruption Department from almirah of Assessing Officer. A Panchnama of the recoveries was prepared. After recovery of ST-1/35 and C and F forms from almirah of Assessing Officer, the petitioner challenged the exparte assessment order by way of filing an appeal. However, being unable to satisfy the condition of pre deposit, he withdrew the appeal and field a revision as per law. His revision was disposed of by the Additional Commissioner. Sales Tax, vide order dated 29.4.2005. Against this order he approached Appellate Tribunal, Value Added Tax, Delhi in appeal. The Appellate Tribunal held that no appeal was maintainable against the order passed in revision in view of the proviso to Sub-section (1) of Section 43 of Delhi Sales Tax A ct, 1975. Right to appeal was strictly a statutory right and since appeal was specifically barred against the order passed in revision, no appeal was maintainable. Present writ petition has been filed by the petitioner, after the rejection of appeal by the Tribunal, praying for writ of certiorari for quashing/setting aside the order dated 29.4.2005 passed by the Additional Commissioner-Ill. Sales Tax, New Delhi and also for quashing order dated 16.11.2005 passed by the Appellate Tribunal, Value Added Tax. New Delhi. A prayer is also made for issuance of mandamus directing the respondent to consider the statutory forms submitted by the assessee for the assessment year 1989-1990.

(2.) We have heard the Counsel for parties and perused the record.

(3.) As far as the maintainability of appeal before Tribunal is concerned, Section 43(1) of the Delhi Sales Tax Act is very clear. Proviso to Section 43(1) makes it clear that the appeal is not maintainable against the orders under Section 44 or an order passed under Section 47 of the Act. The Tribunal was, therefore, right in holding that appeal against the order of the Commissioner passed in exercise of power of revision under Section 47 was not maintainable.