UNIVERSAL GENERAL STORE Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) The assessee is a dealer in cosmetics, hosiery, cashmilon yarn, etc. For the assessment year 1975-76 the disclosed turnover of the assessee was rejected and best judgment assessment was passed. Assessee feeling aggrieved against the order passed by the assessing authority filed first appeal under section 9 of the U. P. Sales Tax Act, 1948 (hereinafter referred to as "the Act") before the Assistant Commissioner (Judicial), Sales Tax, which was allowed in part. Revenue feeling aggrieved against the order of the Assistant Commissioner (Judicial), Sales Tax, preferred a second appeal before the Tribunal. The Tribunal remanded the case back to the Sales Tax Officer for fresh determination of the turnover in the light of the observations made therein. After remand, the assessing authority passed a fresh assessment order on 31st July, 1984, but, however, imposed tax on the sales of cashmilon at the rate of 7 per cent and also raised a demand of interest at the rate of 2 per cent, whereas in the original assessment order the cashmilon was taxed at the rate of 2 per cent. Assessee feeling dissatisfied filed a first appeal before the Assistant Commissioner (Judicial), Sales Tax, who confirmed the order of the assessing authority and dismissed the appeal. Assessee feeling further aggrieved preferred a second appeal before the Tribunal and the Tribunal by the impugned order dated 4th April, 1987, dismissed the appeal. Assessee feeling aggrieved against the said order has come to this Court in the instant revision under section 11 of the Act. I have heard Sri Prakash Krishna, learned counsel appearing for the assessee and Sri Vishnu Sahai, learned Standing Counsel appearing for the Revenue. Counsel for the assessee vehemently urged that since the imposition of tax at the rate of 2 per cent on the sale of cashmilon by the Sales Tax Officer was not challenged by the department, it was not open to the assessing authority to have taxed the same at the rate of 7 per cent. Learned Standing Counsel appearing for the Revenue contended that since the cashmilon was taxable at the rate of 7 per cent on the date of passing of the order by the Sales Tax Officer, the Sales Tax Officer was wholly justified in determining the tax at the rate of 7 per cent. Mr. Prakash Krishna, learned counsel for the assessee, contended that the controversy involved in the instant case is covered by the decision of this Court in the case of Krishna Rice and Oil Mills v. Commissioner of Sales Tax [1987] 67 STC 195; 1986 UPTC 323. He contended that the Sales Tax Officer in his earlier assessment order levied tax on the sale of cashmilon at the rate of 2 per cent and if the department was aggrieved by the rate of tax of cashmilon it was open to the department to have challenged the same in the first appeal but it was never challenged. Not only this, in the second appeal, filed by the department before the Tribunal, the rate of tax imposed on the sale of cashmilon was not challenged and if the rate, applied by the Sales Tax Officer and the Assistant Commissioner (Judicial), Sales Tax, of cashmilon was not challenged by the Revenue, the order passed by the assessing authority to that extent became final and it was not open to the assessing authority after the case was remanded for determination of the quantum to have levied the tax at the rate of 7 per cent on the sale of cashmilon. In the case of Krishna Rice and Oil Mills [1987] 67 STC 195 (All.); 1986 UPTC 323, on which the reliance has been placed, the facts were that though the turnover of the assessee was more than Rs. 2,00,000 the Assistant Commissioner (Judicial), Sales Tax, did not impose any surcharge and the Revenue did not agitate that point in second appeal before the Tribunal and it was held in that case that since the view taken by the Assistant Commissioner (Judicial), Sales Tax, was endorsed by the Tribunal in second appeal, it was not open to the Assistant Commissioner (Judicial), Sales Tax, to have rectified his order. On this analogy it has been contended that since the rate of tax was not challenged by the Revenue, and the order passed by the Sales Tax Officer merged in the order of the Assistant Commissioner (Judicial), Sales Tax, which was challenged before the Tribunal, by the department and in that appeal, the rate of tax having not been raised the order passed by the Assistant Commissioner (Judicial), Sales Tax, also stood endorsed by the Tribunal. In view of the said fact, the impugned order passed by the Tribunal in the instant case cannot be sustained. I have given my thoughtful consideration to the facts of the case and also to the law rendered by me in the case of Krishna Rice and Oil Mills [1987] 67 STC 195 (All.); 1986 UPTC 323 and I am of the opinion that the order passed by the Tribunal deserves to be quashed. In the result, the revision succeeds and is allowed. The order passed by the Tribunal is set aside. There will be no order as to costs. Let a copy of this order may be sent to the Tribunal concerned as contemplated under section 11 (8) of the Act. Petition allowed. .