CHHOTA BHAI JETHA BHAI PATEL AND CO Vs. COMMISSIONER OF SALES TAX M P
LAWS(CHH)-2005-9-5
HIGH COURT OF CHHATTISGARH
Decided on September 22,2005

CHHOTA BHAI JETHA BHAI PATEL AND CO Appellant
VERSUS
COMMISSIONER OF SALES TAX M P Respondents

JUDGEMENT

A.K.PATNAIK,J - (1.) THIS is a reference under section 44 (3) of the Madhya Pradesh General Sales Tax Act, 1958.
(2.) THE facts as stated in the statement of case drawn up by the Board of Revenue are that the applicant Chhota Bhai Jetha Bai Patel and Co. is running the business of tendu leaves at Rajnandgaon. For the period November 5, 1964 to October 24, 1965 the applicant was assessed for sales tax under the M. P. General Sales Tax Act (for short, "the State Act") and as well as under the Central Sales Tax Act (for short, "the Central Act") by the Sales Tax Officer, Rajnandgaon by order dated November 15, 1966. The Additional Commissioner of Sales Tax, Jabalpur, however, in exercise of powers of revision under section 39 (2) of the State Act, found that such orders of assessment were erroneous and prejudicial to the interest of Revenue. By order dated January 29, 1973, the Additional Commissioner of Sales Tax, Jabalpur, set aside the order of assessments passed under the State Act and remanded the case back for assessments in accordance with law and the observations in the said order. By another order dated April 8, 1973, the Additional Commissioner of Sales Tax, Jabalpur, set aside the order of assessments passed under the Central Act and remanded the case for assessments in accordance with law and the observations in the said order. Thereafter, fresh assessments were made by the Additional Assistant Commissioner of Sales Tax, Raipur, by orders dated January 31, 1976. Aggrieved by the said orders of assessments dated January 31, 1976, the applicant filed appeals before the Appellate Deputy Commissioner of Sales Tax, Raipur and by the orders dated April 21, 1978 and April 29, 1978, the Deputy Commissioner of Sales Tax, Raipur allowed the appeals in part under the State Act and the Central Act. Aggrieved by the said orders passed by the Appellate Deputy Commissioner of Sales Tax, Raipur, the applicant filed second appeals before the Board of Revenue, Gwalior, Madhya Pradesh and by order dated February 24, 1981 the Board of Revenue held, relying on K. L. Kochar and Co. v. Sales Tax Officer, Gwalior, Madhya Pradesh reported in [1971] 28 STC 473 that on remand of the case by the Additional Commissioner of Sales Tax, Jabalpur, the Additional Assistant Commissioner of Sales Tax could not have made the fresh assessments as the Sales Tax Officer had made the original assessments and the Additional Commissioner of Sales Tax had passed orders in revision under section 39 (2) of the State Act on the said orders passed by the Sales Tax Officer.
(3.) THE Board of Revenue further held that since the Sales Tax Officer has no jurisdiction to assess a turnover beyond Rs. 30 lakhs at the relevant time and the turnover of the applicant was beyond Rs. 30 lakhs the correct procedure in such a case would be for the Additional Commissioner of Sales Tax to pass final orders himself under section 39 (2) of the State Act. Aggrieved by the said order of the Board of Revenue dated February 24, 1981, the applicant filed an application for reference under section 44 (1) of the Act, before the Tribunal for referring the questions of law which arose out of the orders passed by the Board of Revenue, but, the same was rejected by the Board of Revenue. Thereafter, the applicant moved the High Court for reference and by order dated February 13, 1989 [chhota Bhai Jetha Bhai Patel and Company v. Commissioner of Sales Tax, M. P. Indore [1991] 81 STC 80 (MP)] passed in M. C. C. No. 192 of 1983 and M. C. C. No. 193 of 1983 directed the Tribunal to refer the following substantial question of law for opinion of the High Court : " Whether, in the facts and circumstance of the case, the Tribunal was right in directing the Additional Commissioner of Sales Tax to pass final order under section 39 (2) of the M. P. General Sales Tax Act, 1958 ?" ;


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