TaxTMI 
TaxTMI 
1989 (3) TMI 360
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....n 23(4) of the said Act and was assessed on best judgment. Being aggrieved the petitioner filed appeals before the Additional Commissioner of Sales Tax, but the same were dismissed. Thereafter, the petitioner filed appeals before the Sales Tax Tribunal. Along with the appeal the petitioner also filed an application under section 43(5) of the said Act read with rule 36(6) of the Delhi Sales Tax Rules, 1975, praying that there should be a stay of recovery of the amount of tax demanded from the petitioner. The Sales Tax Tribunal (respondent No. 1) vide its order dated 1st December, 1987, directed the petitioner to deposit 50 per cent of the tax demanded and furnish surety for the balance amount within a period of 30 days of the communication of the order. The aforesaid order dated 1st December, 1987, is sought to be challenged by the petitioner in this writ petition. The only contention which has been raised challenging the said order of respondent No. 1 is that the provisions of section 43(5) of the said Act are not applicable to any second appeal which is filed under the Act. The submission of the learned counsel for the petitioner is that under section 43(5) an assessee is....
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....ity unless such appeal is accompanied by a satisfactory proof of the payment of tax with or without penalty or, as the case may be, of the payment of the penalty in respect of which the appeal has been preferred: Provided that the appellate authority may, if it thinks fit, for reasons to be recorded in writing, entertain an appeal against such order- (a) without payment of the tax and penalty, if any, or as the case may be, of the penalty, on the appellant furnishing in the prescribed manner security for such amount as it may direct, or (b) on proof of payment of such smaller sum, with or without security for such amount of tax or penalty which remains unpaid, as it may direct: Provided further that no appeal shall be entertained by the appellate authority unless it is satisfied that such amount of tax as the appellant may admit to be due from him has been paid. (6) The appellate authority may, after giving the appellant an opportunity of being heard,- (a) confirm, reduce, enhance or annul the assessment (including any penalty imposed), or (b) set aside the assessment (including any penalty imposed) and direct the assessing authority to make a fresh asse....
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.... the tax or penalty has to be deposited. In my opinion, the expression "an order of assessment" occurring in sub-section (5) of section 43 would include within its ambit not only the order passed by the Sales Tax Officer, but would also include the orders passed in appeal. The words "an order of assessment" would mean an order whereby an assessee's tax liability has been determined. The word ,,assessment" has various connotations and would include within its ambit the whole procedure of the charge, levy, determination and realisation of tax. As held by the Supreme Court in Kalawati Devi Harlalka v. Commissioner of Income-tax [1967] 66 ITR 680: "It is quite clear from the authorities cited above that the word 'assessment' can bear a very comprehensive meaning; it can comprehend the whole procedure for ascertaining and imposing liability upon the taxpayer." In that case the Supreme Court was concerned with the expression "procedure for the assessment", and the Supreme Court held that this expression included, inter alia, appeals and revisions as well. Applying the aforesaid ratio to the present case it would mean that the expression "an order of assessment" occurring in sub-sectio....
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....the Commissioner because it was of the opinion that if the Commissioner was not entitled to revise the order at any stage, then there would be cases where assessment could not be enhanced. The provisions of the said section 55(6) with which the Supreme Court was concerned are as follows: "(6) Subject to such rules of procedure as may be prescribed, every appellate authority (both in the first appeal and the second appeal) shall have the following powers: (a) in an appeal against an order of assessment, it may confirm, reduce, enhance or annul the assessment; or it may set aside the assessment and refer the case back to the assessing authority for making a fresh assessment in accordance with the direction given by it and after making such further inquiry as may be necessary; and the assessing authority shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment; (b) in an appeal against an order imposing a penalty, the appellate authority may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; (c) in any other case, the appellate authority ma....
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....tation to section 55(6) that the Supreme Court came to the conclusion that the Tribunal had the power to enhance tax. Under these circumstances, it is not possible to hold that the aforesaid observations of the Supreme Court were an obiter. I may at this stage also notice two other decisions, though rendered in a slightly different context. A question arose whether C forms could be filed before the appellate authority or not. The Central Sales Tax (West Bengal) Rules, 1958 required the production of the C forms "at the time of the assessment". A question arose before the Calcutta High Court in Mohatta Brothers v. Additional Member, Board of Revenue, West Bengal [1975] 36 STC 582 whether the said rules permitted the production of the C forms along with an appeal before the Assistant Commissioner or not. It was observed by the High Court that "the time of assessment contemplated in the proper context, in our opinion, must include all stages of assessment and necessarily permits production of declaration forms before any appellate or revisional authority before whom the question of assessment is pending". The court, therefore, regarded the appellate proceedings as being a part or c....
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....authority is not different, functionally and substantially, from the assessing authority itself." I am in complete agreement with the aforesaid observations that functionally and substantially the appellate authority is not different from an assessing authority and this being so, the order which is passed in appeal is, in effect an order of assessment. More so, when the original order passed by the Sales Tax Officer has to be regarded as having merged in the appellate order. It is true that in a number of sections and rules there is reference to the original order being regarded as an order of assessment. This may be so, but as I have already observed, the word "assessment" may have different connotations in the different parts of the Act. Under section 43(5) the words "an order of assessment" would include not only the order passed by the Sales Tax Officer, but would also include an order of the appellate authority, or the prescribed authority. The Tribunal, therefore, could not entertain the appeal filed by the petitioner without the provisions of sub-section (5) of section 43 being complied with. In the present case, the Tribunal gave an opportunity to the petitioner to de....