COMMISSIONER SALES TAX Vs. GAYA PRASAD ANIL KUMAR

JUDGEMENT

(1.) The Revenue has preferred the present revision which relates to the assessment year 1974-75. The respondent (dealer) carries on the business of purchase and sale of foodgrains and admitted his tax liability at Rs. 4,685. The assessing authority rejected the books of account of the dealer and fixed his turnover to Rs. 3,65,000 imposing tax liability at Rs. 16,420. The dealer preferred first appeal and the Assistant Commissioner (Judicial) partly allowed the appeal, reduced the tax liability to Rs. 6,890. As against the first appellate order, the dealer as well as the Revenue preferred second appeal before the Sales Tax Tribunal. In the appeal preferred by the dealer, the Tribunal reduced the net turnover while the second appeal filed by the Revenue, the Tribunal dismissed the same on the ground that since the appeal filed by the dealer has already been decided, the appeal of the Revenue is dismissed.

(2.) Learned Standing Counsel urged that the decision of the Tribunal in not deciding the appeal of the Revenue was illegal as both the dealer as well as the sales tax authority have independent right of appeal under the statute. The appeal of any party cannot be rejected merely on the ground that the appeal of the other party has been decided. It was further urged that it is open to the Tribunal to have examined the case on the facts and circumstances whether the decision already made is on the identical ground which is raised in the latter appeal which was decided subsequently by it. It was further urged that even if the grounds of the dealer's appeal are different which was decided by the Tribunal, the appeal of the Revenue authorities cannot be dismissed. In the case of Commissioner of Sales Tax v. Vijai Int. Udyog 1985 UPTC 131 the Honourable Supreme Court held that both the assessee and the Commissioner had statutory right of appeal to the Tribunal and in exercise of that right two separate appeals had been filed. On account of the mistake of the Tribunal in not clubbing the two appeals, statutory right of appeal of one party could not be negatived. It was further held that no party should suffer on account of the mistake of the Court or Tribunal. In that case the principle of merger was held to have no application. Learned Standing Counsel further relied on the cases of Bhagwati Prasad Kasturi Devi v. Commissioner of Sales Tax 1985 UPTC 484, Surendra Brick Field v. Commissioner of Sales Tax 1985 UPTC 925, Commissioner of Sales Tax v. Patursuns Adarsh Nagar 1986 UPTC 308 and Commissioner of Sales Tax, U.P. v. Daya Ram Ram Sewak Doll Mill 1987 STD (HC) 1. On the basis of these authorities also it is urged that the Tribunal committed error in not deciding the appeal of the department. On the other hand, the learned counsel for the dealer relied on a decision of this Court in the case of Commissioner of Sales Tax v. Ganesh Flour Mills Co. Ltd. 1986 UPTC 291. In that case it was argued that the aforesaid Supreme Court decision was taken into consideration and yet the order passed was not quashed. I have perused this decision. In this case it was held that the revision of the dealer was directed against the order of the first appellate authority in which the Revenue had opposed and it was after hearing the parties, the amount of penalty of Rs. 60,000 was reduced to Rs. 30,000. The Revenue also preferred an appeal against the order of the first appellate authority but it was held that the question involved in the revision filed by the dealer and the second appeal of the Revenue was confined only to the amount of penalty. It was further held in that case that the reduction of the penalty in the dealer's appeal was not challenged by the department, the said order had become final.

(3.) In the present case there is no material on the record to come to the conclusion which has been drawn in the aforesaid case. In this case the second appeal of the department was dismissed only on the ground that since the appeal of the dealer had already been decided earlier, the Revenue's appeal could not be looked into. This decision of the Tribunal is clearly against the principles as laid down in 1985 UPTC 131 (SC) (Commissioner of Sales Tax v. Vijay Int. Udyog). In that decision the Honourable Supreme Court has very clearly laid down that on account of the mistake of the Tribunal in not clubbing the two appeals, the statutory right of appeal of one of the parties could not be negatived. In fact, in the present case the Tribunal has negatived the right of the department by not permitting the appeal of the department to be decided. In view of this, the order passed by the Tribunal dated 24th December, 1986 is liable to be set aside. It is held that the Tribunal was wrong in not deciding the appeal of the department which has separate right granted under the statute and the said order, therefore, suffers from that illegality. However, it shall be open for the parties to urge before the Tribunal the impact of the decision which has been given in the earlier dealer's appeal and whether the questions involved in the earlier appeal by the dealer and the present appeal by the department are identical or separate. The Tribunal should decide afresh the appeal of the department in accordance with law.