TaxTMI 
TaxTMI 
2011 (11) TMI 121
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....f appeal. 2) Whether the Tribunal was justified in holding there was no merger of assessment order with the appeal order and the revision order was barred by limitation." 2. The Respondent is a registered dealer manufacturing engines and their spare parts, bearings of oil engines, auto parts, tractor spares and other products. As a dealer the Respondent was assessed for Assessment Year 1995-96 by the Assistant Commissioner of Sales Tax, Pune. The order of assessment was passed on 31 March 1999 and was communicated to the dealer on 21 April 1999. The assessment resulted in an order of refund in favour of the dealer under the Bombay Sales Tax Act 1959, which amount was adjusted against central sales tax dues. The Assessing Officer imposed a penalty apparently of Rs.1000/and interest under Section 36(3)(a) in the amount of Rs.12,967/The order of the Assessing Officer was challenged by the dealer only on the ground relating to the levy of interest and penalty. The Deputy Commissioner of Sales Tax by his order dated 30 June 2000 allowed the appeal and set aside the imposition of interest and penalty. The order was communicated to the dealer on 31 July 2000. The Additional Commissioner....
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....1999 must be regarded as having merged with the order of the appellate authority dated 30 June 2000. Hence, the revisional order which was passed on 27 June 2005 was within a period of five years of the order passed by the Deputy Commissioner and was within limitation. 5. On the other hand, it was urged on behalf of the dealer that the doctrine of merger can have no application to the present case. The dealer, it was urged, had filed an appeal against the order of assessment only confined to the issue of interest and penalty. That was the only aspect which was therefore considered in the order passed by the Deputy Commissioner in first appeal on 30 June 2000. There was therefore no merger of the other aspects of the order of assessment with the order passed by the first appellate authority. Hence, for the purposes of Section 57(1)(a) the limitation for revising the order of assessment would commence from the date of the original order of assessment, 31 March 1999. Consequently, the revisional order was passed beyond a period of five years contrary to the mandatory requirement of Section 57(1)(a). 6. Section 57(1)(a) of the Bombay Sales Tax Act 1959 provides as follows : S. 57. R....
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....ere would be no occasion to apply the doctrine of merger where the order of the Assessing Officer was subjected to only a limited challenge and that too at the behest of the registered dealer. 8. The doctrine of merger postulates that an order which is passed by a lower authority merges in an order passed by a higher forum before which the correctness of the order of the lower authority is questioned in appeal or revision. It is trite law that the doctrine applies irrespective of whether the order of the lower forum or authority is affirmed or modified by the higher authority. The doctrine of merger has been the subject matter of a long line of authority of the Supreme Court. In the context of revenue legislation it would be necessary to advert to the decision in the State of Madras v. Madurai Mills Company Limited. (1967) Vol.19 Sales Tax Cases 144. In that case, the Respondent was assessed to sales tax on a certain turnover. An appeal was partly allowed by the Commercial Tax Officer for the exclusion of certain items from the turnover. The Deputy Commercial Tax Officer made a revised assessment on 28 November 1952. The Respondent thereupon preferred a revision to the Deputy Comm....
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....or the following proposition : But the doctrine of merger is not a doctrine " of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior tribunal and the other by a superior tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction." 9. The same principle has been applied in the context of revenue legislation by the Supreme Court in Commissioner of Central Excise, Delhi v. Pearl Drinks Ltd. (2010) 32 VST 1 (SC). In that case, the assessee had claimed eight deductions in arriving at the assessable value of the aerated water manufactured and sold by it. The Commissioner disallowed a deduction only of two items. The Tribunal in appeal held that the disallowance of the deductions was in order. A further appeal to the Supreme Court was dismissed ....