- (1.)HEARD Mr. M.L. Varma, learned Senior Counsel for the Appellant and Mr. Pratap Venugopal, Learned Counsel for the Respondents. In these two appeals, the challenge is to the judgment and Order dated 10th June, 2002 passed by the High Court of Bombay at Panaji in WP No. 164/2002 and 165/2002 whereby the High Court has upheld the constitutional validity of Section 27(3A) of the Goa Sales Tax Act, 1964 (hereinafter referred to as the 'Act') and also declined to interfere with the show cause notice that was issued by the Commissioner of Sales Tax under the aforestated provision, and the clarification made vide letter dated 10th May, 2002.
(2.)THIS Court, while issuing notice on 16.09.2002, had passed the following order:
"Learned senior counsel appearing for the Petitioner points out that Under Section 27(2)(A) of the Local Act, second appeal is provided to the Tribunal as against the order of assessment made by the appellate authority, therefore, the Commissioner could not have exercised the power of the Revision Under Section 27(3A) of the said Act. The High Court seems to have missed this point, though this point is specifically raised and recorded in the judgment. Issue notice."

(3.)MR . M.L. Varma, learned senior counsel appearing on behalf of the Appellant, does not intend to press the said ground. However, the submission of the learned senior counsel is that the Commissioner could not have exercised the power of the revision Under Section 27(3A) of the Act. He further submitted that where the matters had travelled to the Tribunal on the same issue for the earlier assessment years and attained finality, it was not open to the Commissioner to encroach upon the same to adjudicate under the guise of revisional jurisdiction for the subsequent assessment years. We find that in respect of the assessment years 1986 -87 and in some other assessment years, the Assessing Officer and the Assistant Commissioner had disallowed exemption from sales tax under Entry 68 of Second Schedule of the Act and the matter travelled to the Tribunal and the decision was ultimately rendered in favour of the Assessee by the Tribunal and the matter attained finality as the Department did not challenge the order of the Tribunal. In respect of certain assessment years, the Assessee succeeded before the assessing officer and the Assistant Commissioner.
Having heard Mr. Varma, Learned Counsel for the Assessee Appellant, we are not inclined to go into the validity of show cause notice and leave the same open to be urged before the Commissioner. We are of the considered opinion that if a particular issue has been foreclosed by the decision of the Tribunal the Commissioner should be well advised not to encroach upon the same to adjudicate under revisional jurisdiction. Hence, without entering into the validity of the show cause notice or the rejection of the reply filed by the Assessee, we clarify that the Commissioner has to restrict himself to adjudicate in respect of the assessment years where there has been no determination of the Tribunal and further, in case the Tribunal has delivered its verdict in favour of the Assessee and the issue is covered, the same should not be reopened or touched by the Commissioner of Sales Tax in exercise of the power Under Section 27(3A) of the Act. In the result, the matter is remanded to the Commissioner for the purpose of adjudication in the light of observations made hereinabove we further direct that the Commissioner shall afford an opportunity of hearing to Assessee before passing a final order in the matter. It shall be open to the Assessee -appellant to raise all contentions including the issue of jurisdiction of the Commissioner for proceeding with the case Under Section 27(3A) of the Act. It is further clarified that the Commissioner shall deal all the issues while passing the final order and nothing shall be pressed by the Assessee for interim adjudication. With the aforesaid clarification, the appeals stand disposed of with no orders as to cost.