COMMISSIONER OF SALES TAX Vs. KUMAR BROTHERS

JUDGEMENT

(1.) The question raised by the Commissioner of Sales Tax in this revision under Section 11(1) of the U. P. Sales Tax Act is whether an order which has been affirmed on merits by the revising authority under the Act can, in effect, be set aside by recourse to proceedings under Section 30 of the Act. First, the facts :

(2.) Sarvasri Kumar Brothers, the dealer-opposite party in this revision, makes supplies to Government department. For the year 1975-76, it furnished three quarterly returns but failed to pay the tax on the basis thereof. It did not appear before the assessing authority during the assessment proceedings so that an ex parte assessment had to be made. The taxable turnover was determined at Rs. 80,000 by an order dated 8th July, 1976. The dealer filed an appeal against this order under Section 9 as well as an application for setting aside the ex parte order under Section 30 of the Act. Allowing the appeal partly, the Assistant Commissioner (Judicial), Sales Tax, reduced the taxable turnover to Rs. 70,000 by order dated 4th August, 1977. The dealer's revision was partly allowed by the revising authority by order dated 24th January, 1979, and the taxable turnover reduced to Rs. 60,000.

(3.) Meanwhile on 12th December, 1978, the assessing authority disposed of the application of the dealer under Section 30 rejecting it. The dealer filed an appeal against this order which was disposed of by the Assistant Commissioner (Judicial), Sales Tax, on 8th May, 1979, i.e., after the decision of the revising authority dated 24th January, 1979, affirming the ex parte assessment order though reducing the taxable turnover. The order of assessment dated 8th July, 1976 was set aside. The Commissioner, Sales Tax, then assailed this order in a revision which ultimately came to be disposed of by the Sales Tax Tribunal, which had in the meantime replaced the revising authority due to amendment in the Act. The Tribunal dismissed the Commissioner's revision, which was treated as a second appeal, by an order dated 17th February, 1981. It held that the dealer having invoked the jurisdiction of the authority under Section 30, was entitled to the relief granted to it by setting aside the order of assessment in spite of the fact that on merits the order of assessment had been affirmed by the revising authority. It purported to rely upon the decision of this Court in the case of the Commissioner of Sales Tax, U. P. v. Agrimal Raja Ram, Muzaffarnagar [1974] 33 STC 416. The Commissioner has now come to this Court assailing the view of law taken by the Tribunal.