TaxTMI 
TaxTMI 
2010 (9) TMI 956
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...., 1987 to March 31, 1988 vide order dated March 19, 1991 passed by the fourth respondent in Assessment Case No. 24 of 1988. On assessment additional demand of Rs. 41,062 was raised against the petitioner. The petitioner being a new industrial unit was granted the facility of deferment of payment of tax for the period from June 22, 1985 to June 21, 1988 under the notification dated September 1, 1983 for a period of 10 years, was allowed the facility to purchase all classes of goods specified in Schedule II of the Sales Tax Act from other registered dealer for use as raw material or incidental goods in the manufacturing of other goods for sale without payment of tax. In the circumstances, while making assessment the fourth respondent did not levy purchase tax under section 7(1) of the Sales Tax Act on the goods purchased by the petitioner from other registered dealers without payment of tax, in view of the notification dated May 8, 1984. However, the fourth respondent levied tax on some part of the sales of cement by denying the petitioner opportunity to produce the declarations in form B2 and appendix declarations. Feeling aggrieved by the part of the said order passed by the fourt....
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....o Grasim Industries, the owner of the petitioner's unit and there being no sale, no tax was leviable on it. The petitioner being dissatisfied with the order of reassessment (annexure P9) preferred an appeal before the third respondent, the AppellateDeputy Commissioner of Commercial Tax, Ujjain. The main contention of the petitioner before the appellate authority was that the proceedings of reassessment initiated by the assessing authority invoking powers under section 19(1) of the Sales Tax Act were barred by limitation of five calendar years from the date of order of assessment dated March 19, 1991. However, the appellate authority did not agree with the petitioner's contention. He held that in view of the fresh order of assessment passed on October 26, 1994 the period of limitation would run from the date of fresh assessment order dated October 26, 1994. Accordingly, the petitioner's appeal was dismissed vide order dated September 9, 2002 (annexure P11). The revision filed by the petitioner before the first respondent, the Commissioner of Commercial Tax, was also dismissed vide order dated July 2, 2003 (annexure P13). Aggrieved the petitioner has filed this petition.....
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....ner to file declarations in form B and appendix declarations and, therefore, all other points emanating from the original order of assessment passed on March 19, 1991 had become final and did not merge in the appellate order. He also urged that from the date of original order of assessment dated March 19, 1991 the period of limitation had already expired on December 31, 1996 in the circumstances, the proceedings of reassessment initiated on September 23, 1997 were clearly barred by limitation. In support of his contentions, learned senior counsel for the petitioner placed reliance on the Division Bench judgments of this court in the case of Commissioner of Sales Tax v. Jammatlal Prahaladrai [1983] 54 STC 392. The Full Bench judgment of this court in the case of Commissioner of Income-tax, Bhopal v. R.S. Banwarilal [1983] 140 ITR 3; [1982] MPLJ 296, yet another Full Bench judgment of this court in the case of Commissioner of Income-tax, Bhopal v. Mandsaur Electric Supply Co. Ltd. [1983] 140 ITR 677, Division Bench judgment of the Andhra Pradesh High Court in the case of State of Andhra Pradesh v. Sri Rama Laxmi Satyanarayana Rice Mill [1975] 35 STC 601, Division Bench judgment of th....
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....ty while disposing of the appeal, the appellate authority passed an order which was clearly prejudicial to the Revenue. The Commissioner was therefore, entitled under section 39(2) of the Act to revise that order. As the order imposing penalty could have been passed by the appellate authority, the limitation for taking proceedings under section 39(2) of the Act for revising the order of the appellate authority was three years from the date of the appellate order, and in the instant case, counting the limitation from the date of the order of the appellate authority, the revisional proceedings were within limitation. On the other hand, Shri L.N. Soni, learned Additional AdvocateGeneral placing reliance on the judgment of the Supreme Court in the case of Deputy Commissioner of Commercial Taxes v. H.R. Sri Ramulu [1977] 39 STC 177 argued that while allowing the petitioner's appeal the Appellate Deputy Commissioner vide order dated May 20, 1992 (annexure P6) had set aside the assessment order dated March 19, 1991 and remanded the matter to the assessing authority, the fourth respondent, therefore, the order passed by the assessing authority after remand on October 26, 1994 (annexu....
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....e this question had arisen before the appellate authority. In the case of Commissioner of Sales Tax v. Jammatlal Prahaladrai [1983] 54 STC 392 (MP) the assessment order was passed on June 7, 1965. The assessing authority did not take any proceedings for imposing penalty under section 43 of the Sales Tax Act. In the appeal preferred by the assessee which was decided by the Additional Appellate Assistant Commissioner on March 9, 1966 the appellate authority also did not take any action under section 43. In the circumstances, the Commissioner took the matter in suo motu revision in exercise of its powers under section 39(2) of the Sales Tax Act. He was of the view that the order of the appellate authority was erroneous and prejudicial to the interest of the Revenue as no action was taken for imposition of penalty under section 43. After issuing the notice to the dealer on March 7, 1969 the Additional Commissioner imposed upon him the penalty of Rs. 1,000 under section 43(1) in the revision. The appeal preferred by the dealer was allowed by the Sales Tax Appellate Tribunal holding that the revision was barred by limitation. The Division Bench after considering the proviso to section....
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.... of Sales Tax v. Jammatlal Prahaladrai [1983] 54 STC 392 (MP) lays down correct law and accordingly we approve the view taken by the Division Bench in the case of Commissioner of Sales Tax v. Jammatlal Prahaladrai [1983] 54 STC 392 (MP). Now in order to decide the controversy involved in this petition as to whether the period of limitation for initiating the proceedings for reassessment under section 19(1) of the Sales Tax Act would start from the original order of assessment or from the order of fresh assessment passed after the order of remand we would first deal with the judgments on which learned counsel for the parties have relied. In the case of State of Madras v. Madurai Mills Co. Ltd. [1967] 19 STC 144 the Supreme Court after considering the various judgments including the judgment in the case of Commissioner of Income-tax, Bombay v. Amritlal Bhogilal and Co. [1958] 34 ITR 130 and in the case of State of U.P. v. Mohammad Nooh [1958] SCR 595 held that 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 ....
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....he Full Bench applying the law laid down by the Supreme Court in the case of State of Madras v. Madurai Mills [1967] 19 STC 144 held that the Appellate Tribunal was not correct in law in holding that the entire assessment orders of Income-tax Officer had merged in the order of the Appellate Assistant Commissioner, irrespective of the points urged by the parties or decided by the Appellate Assistant Commissioner and, therefore, the Commissioner of Income-tax was not competent to revise those orders under section 263 of the Income-tax Act, even in respect of the points not considered and decided by the Appellate Assistant Commissioner. In the case of Commissioner of Sales Tax, M.P. v. Sanawad Co-operative Society [1984] 55 STC 54 the Division Bench of this court has held that the appellate authority under the Income-tax Act as well as the Sales Tax Act has jurisdiction to consider and decide even that part of the order of the assessing authority against which no appeal has been preferred. But when the appellate authority does not touch any part of the order of the assessing authority, the order of the assessing authority to that extent cannot be held to be merged in the order of the ....
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....ard to the original assessment order, the aforesaid limited challenge to the original assessment order in the appeal, the order of the appellate authority and the order of assessment passed after the remand in our view the respondents have committed error in holding that the original order of assessment passed on March 19, 1991 was completely set aside. In fact from the perusal of the memo of appeal and the order of remand passed on May 20, 1992 it is clear that the order of remand was passed only in respect of the prayer of the petitioner to afford opportunity to submit form B and appendix declarations by directing the assessing authority to afford an appropriate opportunity to the petitioner to submit form B and appendix declarations. The appellate authority did not touch other parts of the order of the assessing authority. Thus in our considered view, the only point merged in the remand order of assessment was in respect of the said form B and appendix declarations filed by the petitioner in consequence of the directions given by the appellate authority and not the whole original order of assessment. The judgment of the Supreme Court in the case of Deputy Commissioner of....