Arguable tax reference question survives challenge to fresh assessment made under a later-set-aside remand order

A reference application under section 61(1) of the Bombay Sales Tax Act, 1959 was held to raise an arguable question, because the challenge concerned whether a fresh assessment made pursuant to a remand order could survive after that remand order was later set aside. The Court found that the Tribunal was wrong to treat the question as unworthy of reference, since the issue required consideration on the statement of facts and could not be rejected as incapable of argument. The Tribunal's refusal to state a case was therefore unsustainable, and its order was set aside with a direction to refer the appropriate question to the High Court.

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Issues: Whether a fresh assessment made on the basis of a remand order could stand when that remand order was later set aside, and whether the question sought to be referred to the High Court was arguable so as to warrant a reference.

Analysis: The application arose under section 61(1) of the Bombay Sales Tax Act, 1959. The Court noted the sequence of appellate orders, including the initial remand for fresh inquiry, the commencement of fresh inquiry by the Sales Tax Officer, and the later challenge to the fresh assessment made pursuant to that remand. In that background, the Court held that the issue was not incapable of argument and therefore required consideration by way of reference. The Tribunal's refusal to make a reference was therefore unsustainable.

Conclusion: The Tribunal's order was set aside and it was directed to refer the appropriate question along with the statement of facts to the High Court.

Final Conclusion: The assessee succeeded in obtaining a reference from the Tribunal, and the matter was not finally decided on the substantive tax liability in this proceeding.

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