STATE OF HARYANA Vs. FRICK INDIA LTD

JUDGEMENT

(1.) SALES Tax Tribunal, Haryana, has on the application of the Commissioner, referred the following question for our opinion under Section 42 of the Haryana General Sales Tax Act, 1973 (the "act" for short) :

(2.) THE facts giving rise to this question may briefly be recounted : Frick India Limited, Faridabad, the assessee-respondent in this case, is a registered dealer under the Punjab General Sales Tax Act, 1948 as applicable to the State of Haryana at the material time and the Central Sales Tax Act, 1956. The Assessing Authority vide its order dated 20th January, 1976, framed assessment for the year 1968-69. It declined to adjust a sum of Rs. 95,729. 38 on account of credit notes ; rejected C forms involving tax of Rs. 32,333. 25 and also added a tax of Rs. 3,495. 18 on account of insurance charges though the respondent had claimed that they were not assessable to tax. The assessee went up in appeal under Section 39 of the Act read with Section 9 (2) of the Central Sales Tax Act, 1956. The respondent urged before the Deputy Excise and Taxation Commissioner that the Assessing Authority had erred in not adjusting Rs. 95,729. 38 on account of credit notes ; in rejecting and not admitting C forms involving tax of Rs. 32,333. 25 and in imposing a tax of Rs. 3,495. 18 on insurance charges which were not taxable. No other point was urged before the appellate authority on behalf of the respondent. It may be mentioned here that the Assessing Authority had allowed deductions from the taxable turnover to the assessee for certain amounts which were claimed to be sales in the course of exports out of the territory of India. The department had not filed any appeal or revision against this order of the Assessing Authority.

(3.) THE appellate authority dealt with the points raised in the appeal and did not agree with the contentions of the respondent-assessee. He held that the claim for adjustment of credit notes was not tenable ; C forms were not submitted before the assessing authority and the insurance charges were part and parcel of the price of goods. Consequently, he held that there was no force in the appeal and rejected the same. However, in para 5 of his order he held that the transfer of goods allowed for Delhi by the Assessing Authority was not in order as neither the stock register of Delhi had been produced before the Assessing Authority nor it was established that any godown was maintained by the appellant at Delhi. He also held that the Assessing Authority had admitted the claim regarding exports out of the territory of India to the tune of Rs. 4,70,997. 30 though there was no evidence in the form of bills of lading or even shipping documents. He observed that the Assessing Authority had not examined the case properly and it required a fresh examination for each item of deductions claimed and allowed by the Assessing Authority. Consequently, he set aside the assessment regarding the deductions permitted by the Assessing Authority and remanded the case to that extent for a fresh decision. Aggrieved by this order, the respondent filed an appeal before the Sales Tax Tribunal, Haryana. It was urged before it on behalf of the appellant-assessee that the Assessing Authority had not taken into account C forms submitted to it on the plea that they were mutilated and there were over-writings thereon ; no opportunity was given to submit C forms and appellant was not given adjustment for credit notes and insurance charges. Lastly, it was argued that the Deputy Excise and Taxation Commissioner had remanded the case to the Assessing Authority for examination of points already settled by the Assessing Authority regarding which the appellant had not made any grievance. The first three contentions did not find favour with the learned Tribunal and they were turned down. However, the learned Tribunal was impressed by the last argument and held that the Deputy Excise and Taxation Commissioner had acted illegally in taking up issues in the appeal filed by the assessee which were not raised by it. The scheme of the Act was that the appellate authority had to pass, on an appeal, such orders as it may deem fit. However, it did not authorise the appellate authority to raise suo motu issues which had not been taken up in the grounds of appeal under Section 39. It held that the order of remand was illegal and quashed the same.