AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (4) TMI 6
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.... 2005-06 Central) and; 263 of 2011 (A.Y. 2006-07 Central). 3. According to the petitioner, the Tribunal had decided the issue, on merits, in favour of the petitioner and had thereafter remanded the matter to the Assessing Authority on a limited question: whether the petitioner was entitled to benefit of certain statutory forms that it had filed before the first appellate authority. It is thus submitted that the Assessing Authority had no jurisdiction to look beyond that order of the Tribunal or to examine any other or further issue in the proceedings thus remanded to it. 4. Briefly, there existed a company namely M/s HCL Infosystems Ltd. (hereinafter referred to as the 'former company') which was a wholly owned subsidiary of the petitioner that is an existing company. With effect from 1.4.2007, the former company amalgamated with the petitioner company. The present dispute pertains to the business of the former company, prior to its amalgamation with the petitioner company. 5. During the A.Y. 2004-05, 2005-06 and 2006-07, the former company engaged in trading in electronic goods, photocopier, cellular phone etc. It also performed interstate sales to various institutions. Those i....
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....l evidence being filed (by the petitioner), the first appellate authority called for a report from the Assessing Authority of the former company. 10. Though, no objection was raised by that assessing authority, in his remand report to such additional evidence filed, the first appellate authority rejected the appeals filed by the petitioner for the A.Ys. 2004-05 and 2006-07 by his separate orders dated 09.02.2011. Also, the first appellate authority rejected the petitioner's appeal for the A.Y. 2005-06 vide his order dated 11.2.2011. 11. The petitioner carried the matter in appeal to the Tribunal. The Tribunal decided the appeals filed by the petitioner by its order dated 16.10.2015. According to the petitioner, the Tribunal held the petitioner entitled to claim the concessional rate of tax on the basis of additional evidence led before the first appellate authority. Second, the Tribunal held it entitled to claim benefit of Forms-D submitted by it during the course of assessment proceedings with respect to sales made to certain institutions. Third, the Tribunal allowed the petitioner's appeals on the ground of rejection of books of accounts of the petitioner, for the A.Y 2005-06 ....
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....e assessing authority since those sales had not been made to the Central or a State Government, therefore, the petitioner was not entitled to claim benefit of Form D issued to it by the purchaser. 18. Second point raised in the said notice requires the petitioner to produce its balance sheet. According to the learned counsel for the petitioner, it has bearing on the acceptance and or rejection of the books of accounts of the petitioner 19. With respect to the first issue, learned counsel for the petitioner contends that the said issue stands covered and decided in favour of the petitioner upon a categorical finding recorded by the Tribunal in its order dated 16.10.2015 that had attained finality. Since the department allowed the aforesaid order of the Tribunal to attain finality, it is no longer open to the assessing authority to re-examine it any further as it is not open to the Assessing Authority to go beyond the finding recorded by the Tribunal. 20. With respect to second issue raised in the aforesaid notice, it has been submitted that it was relevant only for the purpose of acceptance or rejection of the books of accounts of the petitioner. The books of accounts of the peti....
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....noted above with respect to A.Y. 2004-05. 24. Another objection has been raised to the aforesaid notice in so far as it seeks to question the claim of concessional rate of tax claimed by the petitioner against From-D issued by certain Schools, Colleges, Universities and Panchayats. First, it is stated that no reference has been made to any particular statutory form or transaction in respect whereto the notice has been issued by the assessing authority. Then it is also submitted that as in the A.Y. 2004-05, this issue had attained finality in the order of the Tribunal dated 16.10.2015 and it is no longer open to the assessing authority to re examine the same. 25. With respect to the notice issued for the A.Y. 2006-07 the first objection raised is to the query raised as to the closing stock. The notice states, while the petitioner had disclosed the closing stock Rs. 35.11 crores, but the petitioner i.e. the former company had merged with the petitioner company, in that year. A clarification has been sought whether upon merger the petitioner company had paid tax on the sale of closing stock of the former company. If the answer would be affirmative, then evidence of such tax payment ....
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....een submitted during pendency of the appeals having been admitted in additional evidence, the Assessing Authority was only required to make verification of the same and grant the proportionate benefit. That order having attained finality, the Assessing Authority could only compute the quantum of exemption that may be available on such statutory Forms as may have been filed by the petitioner, upto or during pendency of the appeals. However, the issue of eligibility to exemption on Forms-D stood decided in favour of the assessee. 31. As to the other points sought to be raised by means of impugned notices being with respect to the production of balance sheet, examination of facts relevant to determine whether the books of accounts of the assessee may be accepted and; all other issues noted above are such as had not been permitted or required to be gone into in the proceedings in remand. Therefore, the same may not be permitted to be examined. 32. Principally, it has been submitted that the order dated 16.10.2015 was an order of limited remand passed by the Tribunal and, therefore, it was not open to the Assessing Authority to raise any new, fresh or other issue. Reliance has been pl....
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....eciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal." 34. Then reliance has been placed on another decision of the Supreme Court in the case of Union of India Vs. Kamlakshmi Finance Co. Ltd., 1991 (55) ELT 433 SC, wherein it was held as below: "The position now, therefore, is that,if any order passed by an Assistant Collector or Collector is adverse to the interests of the Revenue, the immediately higher administrative authority has the power to have the matter satisfactorily resolved by taking up the issue to the Appellate Collector or the Appellate Tribunal as the case may be. In the light of these amended provisions, there can be no justification for any Assistant Collector or Collector refusing to follow the order of the Appellate Collector or the Appellate Tribunal, as the case may be, even where he may have some reservations on its correctness. He has to follow the order of the higher appellate authority. This may instantly cause some prejudice to the Revenue but the remedy is also i....
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.... the written statement so as to include pleadings in respect of the fraudulent nature and antedating of the gift deed Ext. P-3. These questions having been decided by the High Court could not appropriately be made the subject-matter of a fresh trial. Further, as pointed out by the High Court, any suit on such pleas is already time-barred and it would be unfair to the plaintiff-respondents to allow these pleas to be raised by amendment of the written statement at this late stage. In the order, the High Court has stated that the judgments and decrees and findings of both the lower courts were being set aside and the case was being remanded to the trial Court for a fresh decision on merits with advertence to the remarks in the judgment of the High Court. It was argued by learned Counsel that, in making this order, the High Court has set aside all findings recorded on all issues by the trial Court and the first appellate Court. This is not a correct interpretation of the order. Obviously, in directing that findings of both courts are set aside, the High Court was referring to the. points which the High Court considered and on which the High Court differed from the lower courts. Finding....
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....er passed by the Tribunal was one of limited remand by which the Assessing Authority was only required to examine whether the Forms-D being relied upon by the petitioner were valid. The question of eligibility to exemption on the basis of such forms (if found valid), was no longer an issue left open by the Tribunal. The department having not challenged the order of the Tribunal, the Assessing Officer could not have enlarged the controversy either by opening up new or other issues that had not been permitted by the Tribunal or to re-agitate the issue of eligibility to exemption on the strength of Forms-D issued by certain educational institutions etc., that according to the Assessing Officer were non-government entities. 42. Shri C.B. Tripathi, learned Special Counsel for the State respondents has submitted, under Section 10(5) of the Act, the Tribunal had ample powers to either confirm, acknowledge or vary the order under the appeal or to set aside the order and direct the assessee or the Appellate Authority etc. to pass a fresh order after such further enquiry, if any, as may be specified or order the amount of tax, if any, or penalty etc. to be refunded. These powers were simil....
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....visional court. It observed that insofar as the revisional court is concerned, wide powers had been given to the Revising Authority that may not have been available to the Appeal Authority and that in exercise of such powers, the revising authority could remand a case to the Assessing Authority to pass a fresh assessment order in accordance with the direction given by it. While doing so, the revising authority could inhibit the scope and ambit of the proceedings in remand. However, such power was not found existing with the Appeal Authority. Referring to the powers given to the Assessing Authority, it was observed , once the assessment is set aside in the appeal and the case is sent back to the Assessing Authority to pass a fresh assessment order, the original proceedings under Section 7 of the Sales Tax Act get revived. Consequently, the Assessing Authority passes a fresh assessment order in the original proceedings under Section 7 of that Act and the earlier assessment order does not survive. Ultimately, the full bench answered the question as under: "Where an order of assessment is set aside by the Appellate Authority which remands the case to the assessing authority with cer....
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.... case of Asian Paints (India Ltd.) Vs. C.C.T., 2017 NTN (Volume 64) 55, where a question arose whether the assessee could file fresh Forms-F at the stage of assessment proceedings in remand. The learned single Judge following the decision of the case in M/s Ram Dayal Harbilas (supra) opined that the entire assessment proceedings being open such a course was permissible. Then reliance has been placed on the division bench decision in Catalysts Vs. State of U.P. and others, 2014 NTN (Volume 55) 360, the Assessing Officer had treated enzymes as unclassified items and taxed the same @ 10% during A.Y. 2006- 07. Upon an appeal, the same was allowed and the assessment order was setaside. Further the matter was remitted to the Assessing Officer to pass fresh assessment order. During pendency of such proceedings, reassessment notice was issued to the assessee which became the subject matter of challenge in the aforesaid case. Relying on the full bench decision in the case of M/s Ram Dayal Harbilas (supra), the division bench opined once the original assessment proceedings became open as a consequence of the order of the assessment, no reassessment proceedings could have been initiated. At ....
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....original assessment orders. He was free to take into account the materials which existed on the date of the reassessment and was not confined to those materials which existed on the date of the original assessment orders. His finding arrived at in the original assessment proceedings that the income from the dividends shown in the return was correct might have been correct but fell with the assessment order itself and was neither operative nor binding in the reassessment proceeding. By the time he came to reassess the assessee he had the Section 23A orders before him under which the assessee was deemed to have received larger income from the dividends." 49. Therefore, it has been submitted by Shri C.B. Tripathi, learned Special Counsel for State respondents that though the Assessing Authority may remain bound by the order of remand passed by the Tribunal, however, there is no limitation on his powers to consider any other or further material. He has ample powers to examine the book of accounts of the assessee as also to raise such queries as may now arise since the original assessment order passed by him no longer exists, the same having been set aside. 50. In sum and substance, ....
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....ent controversy is, by and large, the same. No material difference has arisen as to allow for any fruitful discussion in that regard. The ratio of the Full Bench is categorical and clear being - while carrying out the directions issued by a higher Appellate Authority, the original/Assessing Authority has the same powers as it originally had while making the assessment that was carried in appeal. 54. That being the principle, generally, upon remand being made by a higher Appellate Authority, all questions and issues would become open to be decided afresh or de novo. Therefore, in the first place, it has to be assumed that upon the order of the Tribunal dated 16.10.2015 being passed and the matter being remitted to the Assessing Authority, all issues, as have been raised in the impugned notices, could be raised. The fact that the Assessing Authority raised those issues in the impugned notices, may therefore, not suffer from any inherent lack of jurisdiction. 55. However, one logical and permissible exception exists to the above ratio drawn by the Full Bench. The exception being that the Assessing Authority may not be permitted to reopen or re-examine any issue that may have been sp....