ANAND GENERAL STORE Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) Raising a very interesting question of law, this revision is filed by the assessee carrying business in handloom, cashmilon, etc., for the assessment year 1978-79 against the Tribunal's order dated 7th May, 1986.

(2.) By the order dated 25th February, 1980, the Sales Tax Officer (S.T.O.) imposed the tax at the rate of 2 per cent on the turnover of cashmilon. As the books of account were rejected and the turnover was enhanced by the S.T.O., the assessee appealed to the Assistant Commissioner (Judicial) [A.C. (J.)] challenging the rejection of the books of account and the enhancement of the turnover. Imposition of tax at the rate of 2 per cent on the turnover of cashmilon was not the subject-matter of appeal. The A.C. (J.), however, observed towards the end of his order dated 24th April, 1982, that according to rules cashmilon was liable to be taxed at the rate of 7 per cent and not at 2 per cent. He, therefore, remanded the case to the S.T.O. to reassess the sales of cashmilon.

(3.) Aggrieved, the assessee went up in second appeal to the Tribunal. The latter took the view that the A.C. (J.) was not right in remanding the case for imposing a tax at a higher rate on the turnover of cashmilon, as he himself was fully competent to assess the turnover of cashmilon at the correct rate of tax. The Tribunal also held that under Section 10(5) of the U.P. Sales Tax Act, 1948 (for short the Act, 1948) "...the same could be done at the Tribunal stage". To take this view, the Tribunal relied on Raj Kumar Kotwaj v. Commissioner of Sales Tax, U.P. 1976 UPTC 742 and on two more authorities. The Tribunal finally held : In the aforesaid background, I hold it to be proper to assess the turnover of imported cashmilon at 7 per cent in view of ruling of Honourable High Court in the case of Jaimets Pvt. Ltd. v. State of U.P. 1984 UPTC 67.