DY CAIT AND SALES TAX Vs. PHILIP

JUDGEMENT

(1.) For the assessment year 1951-52, the dealer had furnished returns, but the assessing officer has rejected them on the ground that the dealer had given, in his application for registration, the turnover of Rs. 77,803-4-3, and that was far in excess of what had been mentioned in the returns for the aforesaid year. In the appeal before the appellate Assistant Commissioner, the dealer had taken the ground of his being liable under the notification to pay only the tax on the first and the last sales within the State and the Appellate authority had remanded the case for fresh disposal after setting aside the assessment. While so doing, the Appellate authority had made the following observations:-

(2.) After the remand, the Sales Tax Officer had made fresh enquiries concerning the exemptions claimed by the dealer, assessed Rs. 13,233-9-0 to be the amount of the sales claimed under the exemptions, & found Rs. 64569-13-3 to be the turnover after the aforesaid deduction, and to be liable to pay the tax. The dealer went in appeal to the Appellate Assistant Commissioner, but failed. Therefore, he appealed to the Sales Tax Appellate Tribunal, which has ordered that:

(3.) Against the aforesaid order, the State has filed this revision petition, claiming that any examination of the assessees account books, cannot again be ordered, as the earlier order of the Appellate Assistant Commissioner had settled the account books not to be reliable, and that was passed on October 18, 1954. It is also urged that the dealer is bound by the order, due to the dealers failure of not appealing to the Appellate Tribunal when the order was made. The learned Government Pleader has argued that orders of remand not appealed against, carry finality, and questions settled by them cannot be agitated afresh in subsequent proceedings. In support of this view, he has relied on Sunder Ahir v. Phuljharia (AIR 1957 Patna 534) wherein it was held that the proper construction of the remand order was that the question of plaintiffs title was finally determined by the remand order, and the suit was remanded only on the question of maintainability of the plaintiffs suit. It was further held there that in that view of the matter the decision of the appellate court before remand on other questions, must be deemed to have been finally decided by the remand order. We however, feel that this petition has no force, for, it is well settled that where the remand order be not appealable, the party aggrieved would not be precluded, in the appeal later filed from challenging before the higher appellate authority the correctness of the conclusions arrived at in the earlier order. The learned Government Pleader has very fairly drawn our attention to Secretary of State v. Allu Jagannadham [ AIR 1941 Mad. 530 ] wherein the aforesaid proposition has been laid. Therefore, the issue arising for adjudication in this revision petition, is whether the Appellate Tribunal, which is the higher appellate authority, is precluded by the passage in the earlier remand order by the Appellate Assistant Commissioner, from again directing the examination of the account books. It is clear that if the dealer was bound to appeal earlier, the Tribunal would be precluded. On the other hand, should we come to the conclusion that the passage quoted earlier formed but one of the reasons for making the remand order and the dealer was not bound to appeal, the position would be different. In this connection, we would quote S.14 (4) of the General Sales Tax Act, 1125, which reads as follows:-