TaxTMI 
TaxTMI 
2008 (7) TMI 875
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 9, 1993, the Tribunal held that cartons were taxable under entry 19 of the First Schedule and that other packing material were taxable as general goods. According to the appellant, the order of the Tribunal for these assessment years had become final and the State had not preferred tax revision cases against those orders. The Commercial Tax Officer passed assessment orders for the subsequent assessment years, aggrieved by which the assessee preferred appeals before the Appellate Deputy Commissioner who, by his orders dated May 2, 1995 and August 17, 1995, allowed the appeals in respect of cartons and other packing material referring to the order of the Tribunal without noticing that the order of the Tribunal related to the very same assessment years. The Commissioner of Commercial Taxes not only sought to revise the orders of the Appellate Deputy Commissioner for the assessment years 1981-82, 1983-84, 1984-85 and 1985-86 but also for the eight assessment years from 1986-87 to 1993-94 except in respect of the assessment year 1992-93. For these eight assessment years, the Appellate Deputy Commissioner had granted relief in respect of cartons and other packing material relying on t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of Andhra Pradesh [1959] 10 STC 524 (AP), Menta Narasimhaswamy & Company v. State of A.P. [1983] 54 STC 6 (AP), I.T.C. Ltd. (I.B.D. Division) v. Deputy Commissioner (CT), Gundur Division [2003] 129 STC 104 (AP) and Bayya Pitchaiah v. State of Andhra Pradesh [1969] 24 STC 390 (AP). Learned counsel would further contend that, under section 20(2A) of the APGST Act, the power under sub-section (1) of section 20 could not be exercised by the authority in respect of "any issue or question", which was the subject-matter of appeal before, or which was decided in appeal by the Appellate Tribunal under section 21 of the Act. Learned counsel would submit that, since the Tribunal had already taken a particular view in the appeals filed by the appellants in T.A. No. 611 of 1990 and batch dated September 9, 1993, which order had become final, the decision of the Tribunal on the same issue/question expressly barred the Commissioner from exercising jurisdiction under section 20(1) of the Act. Learned counsel would submit that the Commissioner had made no efforts to distinguish how the facts involved in the appeals before the Tribunal was different from the cases before him and that he had ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f fact and as the order of the Commissioner, in remanding the matter back to the Tribunal, was only to ascertain facts, the order of the Tribunal in T.A. Nos. 611 of 1990 and batch dated September 9, 1993 did not bar him from exercising jurisdiction under section 20(1) of the APGST Act. Learned Special Government Pleader would contend that the order passed by the assessing authority in a particular assessment year would not constitute res judicata for subsequent years. He would rely on Instalment Supply (Private) Ltd. v. Union of India [1961] 12 STC 489 (SC), M.M. Ipoh v. Commissioner of Income-tax, Madras [1968] 67 ITR 106 (SC), Dwarkadas Kesardeo Morarka v. Commissioner of Income-tax, Central Bombay [1962] 44 ITR 529 (SC) and State of Andhra Pradesh v. Mysore Breweries Limited, Vijayawada [1999] 29 APSTJ 142. Section 20: Scope of revision: Does the Commissioner have the power to remand the matter to the assessing authority to make an enquiry? It is true that a Division Bench of this court in Manepalli Venkatanarayana [1959] 10 STC 524 observed that section 20 sets certain limitations within which the power of revision should be exercised, that the revisional authority could corr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....order passed" meant the record of assessment including the assessment order as well as other files of the assessing authority which would furnish the basis upon which the assessment order and if, from a perusal of the record or the assessment files, the revising authority could find that the turnover was before the assessing officer, it was competent for it to pronounce upon the legality or propriety of the assessment order. Section 12(1) and (2) of the Madras General Sales Tax Act, 1939 (Act 9 of 1939), which confers the power of revision, and section 19(1) and (2) thereof which is the rule-making power, though not identical, are similar to sections 20(1) and (2) and 39(1) and (2) of the APGST Act, 1957, respectively. The scope of sections 12 and 19 of the Madras General Sales Tax Act, 1939 fell for consideration in State of Kerala v. K.M. Cheria Abdulla and Company [1965] 16 STC 875 and the Supreme Court observed (at page 883): "Turning then to the jurisdiction which the revising authority may exercise under section 12(2), attention must first be directed to the phraseology used by the Legislature. The Deputy Commissioner is thereby invested with power to satisfy himself....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... section 12(2). . . (emphasis(1) supplied) The decision of the Full Bench of the Madras High Court in Louis Dreyfus and Company Ltd. [1955] 6 STC 318 was followed by a Full Bench of this court in Bayya Pitchaiah [1969] 24 STC 390. In Bayya Pitchaiah [1969] 24 STC 390 (AP), the assessee contented that the power under section 20 was not available to increase the taxable turnover and that such an increase amounted to redetermination of the turnover to the best of judgment which could not be done under section 20. The Full Bench held that the power of revision could not be so whittled down. Following the judgment of the Full Bench of this court in Bayya Pitchaiah [1969] 24 STC 390, a Division Bench of this court in Menta Narasimhaswamy & Company [1983] 54 STC 6 while holding that the earlier decision in State of Andhra Pradesh v. Sri Rama Laxmi Satyanarayana Rice Mill [1975] 35 STC 601 (AP), which laid down the principle that a question not considered by the assessing authority could not be revised under section 20, was arrived at without noticing the judgment of the Full Bench in Bayya Pitchaiah [1969] 24 STC 390 (AP), further observed (at page 9 of 54 STC): ". . . Section 20 conte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thority to ascertain necessary facts does not, therefore, merit acceptance. Relying on the judgments in Commissioner of Income-tax v. Narendra Doshi [2002] 254 ITR 606 (SC), Commissioner of Income-tax v. Shivsagar Estate [2002] 257 ITR 59 (SC), Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219 (SC) and Berger Paints India Ltd. v. Commissioner of Income-tax [2004] 266 ITR 99 (SC), Sri S. Dwarakanath, learned counsel for the appellant, would submit that, if the Revenue did not accept the correctness of the judgment of the Tribunal, it could have preferred revisions/appeals thereagainst and, having accepted or permitted the order of the Tribunal to attain finality, it was not open to the Revenue to differentiate the case of the assessee with another or in the case of the very same assessee for different assessment years. On the other hand, the learned Special Government Pleader for Commercial Taxes would submit that the doctrine of res judicata does not apply so as to make a decision on a question of fact or law in a proceeding for assessment in one year binding in another year, that the assessment and the facts found are conclusive only in the year of assessment, that the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tances that the Commissioner considered it appropriate to remand the matter back to the assessing authority to enable him to conduct proper verification on the material evidence to be produced by the appellant. The order of the Commissioner remanding the matters back to the assessing authority to cause verification/enquiry cannot, therefore, be said to be without just cause. Section 20(2A): Its scope: Extent to which it curtails the power of revision under section 20(1) and (2): It must, however, not be lost sight of that while sub-section (1) of section 20 is no doubt of wide amplitude, the revisional power of the Commissioner in terms of sub-section (1) or sub-section (2) is curtailed by sub-section (2A). It is well-settled that the Legislature, which has provided for a right of appeal or revision, can also create such a right to a party to the lis subject to fulfilment of certain conditions. It can also grant a limited revisional power to a higher authority. As the power of revision, vested in the Commissioner, is circumscribed under sub-section (2A) of section 20 of the Act, something may not be read therein which would widen the power of the Commissioner to such an extent wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....novers included turnover relating to cartons and other packing material, that the Appellate Deputy Commissioner had allowed the appeals on these two items of disputed turnovers and held that cartons were liable to tax under entry 19 of the First Schedule and that other packing material should be assessed as unclassified goods, that the order of the Appellate Deputy Commissioner had been examined with reference to law and the records and was found to be incorrect and prejudicial to the interests of State revenue warranting revision under section 20(1) of the APGST Act on the allowed part of the appeal relating to the turnover of cartons and other packing material since the Appellate Deputy Commissioner had held that the corrugated boxes (cartons) purchased by the assessee from within the State and/or outside the State were not sold along with liquor as evidenced by separate sale prices shown in the invoices, that mere splitting up of the price into various components would not lead to the conclusion that there was a separate agreement for sale of cartons, that it was not in dispute that the assessee had sold liquor bottles packed in cartons and when bottled liquor was sold in carton....