ASSISTANT COMMERCIAL TAXES OFFICER Vs. CHAUHAN ENTERPRISES

JUDGEMENT

(1.) THE only point which has been raised in the present revision is whether the appeal before the Rajasthan Sales Tax Tribunal in respect of the order passed for penalty under section 16 (1) (i) and for tax under section 7b becomes infructuous after the final assessment order under section 10 is passed. In the present case the provisional assessment order was framed on February 1, 1986, in which the evaded tax was determined at Rs. 3,603 and penalty of Rs. 7,206 was levied under section 16 (1) (i) and another penalty of Rs. 500 was levied under section 16 (1) (n ). THE Deputy Commissioner (Appeals) came to the conclusion that the sales have not been established and the tax and penalty under section 16 (1) (i) were set aside and the penalty of Rs. 500 under section 16 (1) (n) was reduced to Rs. 100. When the final assessment order was made under section 10 of the Rajasthan Sales Tax Act, 1954, on May 6, 1989 no tax or penalty was levied in respect of alleged evaded sales. THE Sales Tax Tribunal has held that after the final assessment order, the provisional assessment order does not remain in existence.

(2.) IN accordance with the provisions of section 13 (4) of the Rajasthan Sales Tax Act every order passed in appeal shall be final, which includes even the appeal order against provisional assessment order. The order passed by the appellate authority is binding on the assessing authority and if the appellate authority decided that tax is not leviable in the proceedings under section 7b then while finalising the assessment under section 10 after the order of the Deputy Commissioner (Appeals), the assessing authority is not empowered to levy the tax even if the second appeal is pending before the Tribunal. If an appeal is pending before the Sales Tax Tribunal, then it will be taking out the jurisdiction of the Tribunal in such cases. Such an appeal which might have been preferred by the assessee or the assessing authority if is accepted after the passing of the final assessment order, would affect the final assessment order. If the view is taken that the appeal pending against the provisional assessment order becomes infructuous then it would be giving finality to the order of the Deputy Commissioner (Appeals) without having the order being tested in second appeal and revision. It is no doubt true that if after the decision of the Deputy Commissioner (Appeals) against the provisional assessment order, the second appeal has not been filed, then in final assessment order, the assessing authority is bound by the order of the Deputy Commissioner (Appeals) unless some new facts are produced by the assessee or found and brought on record by the assessing authority and the conclusion in that case may alone be changed. There may be a contingency where even the jurisdiction to frame the provisional assessment was decided by appellate authority against that assessing authority and the assessing authority wants to challenge the said order before the Sales Tax Tribunal, then he will have no remedy if the final assessment order is framed by another authority. Whether an appeal against an order under section 7b before the Tribunal becomes infructuous or not after the final assessment order is framed, therefore, in my view cannot be decided in abstract form. IN the present case the addition made by the assessing authority was deleted by the Deputy Commissioner (Appeals) against which the appeal before the Tribunal was pending and because of the facts that the judgment of the Deputy Commissioner (Appeals) is binding on the assessing authority, the assessment was to be framed by the assessing authority within the time prescribed under section 10b and in the said order he had no jurisdiction to decide contrary to the order of the Deputy Commissioner (Appeals) and the only way left in the final assessment order was to leave those items from taxation net, which were held not liable to be taxed by the appellate authority. IN the appeal before the Sales Tax Tribunal against the provisional order if it is found that the order of the Deputy Commissioner (Appeals) was correct then no problem arises but if the Sales Tax Tribunal comes to the conclusion that the order of the Deputy Commissioner (Appeals) is not in accordance with law then final order has to be modified by the assessing authority under rule 37 read with section 10 or section 12, as the case may be. It will not be proper to hold that the appeal pending before the Sales Tax Tribunal has become infructuous and, therefore, I am of the view that the decision of the Tribunal on this point is not based on the correct interpretation of the provisions of section 13 and the scheme of the Act.