M SYED ALAVI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners were assessed to Sales Tax under the Kerala General Sales Tax Act (hereinafter referred to as the Act) in connection with a contract entered into by them for slaughter tapping of rubber trees. Before the assessing authority (the Sales Tax Officer, Nedumangad) they contested their liability for being taxed on the ground that they were associations of persons who had discontinued their business on the expiry of the period of the contract. The assessing authority overruled the objection and assessed the petitioners to the best of its judgment. Against this order they preferred appeals before the Appellate Assistant Commissioner, Trivandrum, under S.34 of the Act. The Appellate Assistant Commissioner as per order dated 12-5-1976 confirmed the order of the assessing authority regarding liability to assessment but remanded the cases to the assessing authority with a direction to pass fresh assessment orders in the light of certain observations made in the appellate order. Even after remand, the petitioners took the stand that they were not liable to be assessed. The assessing authority held that the plea was not available to them in the light of the order of the Appellate Assistant Commissioner. A fresh assessment order was accordingly passed. The petitioner again preferred appeals before the Appellate Assistant Commissioner during the hearing of which their objection regarding liability to assessment was reiterated. The Appellate Assistant Commissioner refused to consider the point. The appeals were dismissed. Against the order of dismissal Tax Appeals No. 817 to 820 of 1977 were filed under S.39 of the Act before the Kerala Sales Tax Appellate Tribunal. The Tribunal held that since no appeals had been filed against the orders of the Appellate Assistant Commissioner dated 12-4-1976, those orders became final so far as the liability to Sales Tax was concerned and that it was not open to the petitioners to reagitate the matter in the appeals against the final orders of assessment. The above conclusions were reached basing on the analogy in S.105(2) of the Code of Civil Procedure. In these revision cases the petitioners challenge the orders of the Appellate Tribunal.

(2.) The Act, as already noted, provides an appeal to the Appellate Assistant Commissioner under S.34 from an assessment order under S.17(3) and a second appeal to the Appellate Tribunal under S.39 against the appellate order of the Appellate Assistant Commissioner. S.34(3) and S.39(4) of the Act contemplate remand of cases by the Appellate Assistant Commissioner and Appellate Tribunal respectively for fresh enquiry and disposal. The question that arises for consideration in these cases is whether the principles underlying S.105(2) of the Code of Civil Procedure are to be applied as part of the general law to orders of remand by the Appellate Assistant Commissioner and the Appellate Tribunal. It is only proper that we should refer to S.105 of the Code of Civil Procedure at this stage. S.105 of the Code of Civil Procedure reads:

(3.) Neither S.34 nor S.39 contains any provision to the effect that on failure to file an appeal against an order of remand the assessee would be precluded from challenging any finding entered by the Appellate Assistant Commissioner in the order of remand. There is no case for either side that the Code of Civil Procedure as such has application in respect of proceedings under the Act. S.53 of the Act specifies the provisions of the Code of Civil Procedure which are applicable to proceedings before the assessing authority, the appellate authority and the revisional authority including the Appellate Tribunal. The powers mentioned relate to summoning of witnesses and production of documents. Regulation.57 of the Appellate Tribunal Regulations dealing with residuary provision mentions some other matters where the provisions of the Code of Civil Procedure are made applicable. Suffice to say that there is nothing in the Act itself which indicates that principles underlying S.105(2) of the Code of Civil Procedure are applicable to proceedings under the Act. It follows that the finality of an order of remand by an Appellate Authority under the Act could be governed only by general principles of law based on expediency as was the case in matters governed by the Code of Civil Procedure prior to the enactment of S.105(2). Judicial precedents are consistent with the above conclusion.