- (1.) K. L. SHARMA, J. This revision is directed under 4 11 of the U. P. Trade Tax Act against the impugned judgment and order dated 15th April, 1995 passed by Trade Tax Tribunal in Second Appeal No. 623 of 1993, (85-86 under the Central Sales Tax Act) whereby the learned Tribunal has dismissed the appeals against the remand order made second time by the Deputy Commissioner (Appeal) dated August 21, 1993.
(2.) I have heard Sri Bharat Ji Agrawal, learned counsel for applicant and Sri B. K. Pandey, learned Standing Counsel for opposite party and also perused the impugned order made by the appellate authority. The petitioner is a limited company incorporated under the Indian Companies Act and carried on the business of manufacture and sales of tyres and tubes and it has got its branches at Kanpur, Gorakhpur, Delhi and several other depots in different places including Nagpur. The stock transfers of the finished goods are made by the company to its branches and depots. For the assessment year 1985-86 the Assistant Commissioner (Assessment), Sales Tax, Allahabad, accepted the account books of the company and also accepted the disclosed taxable turnover of the stock transfers which were made in the various depots to the extent of Rs. 3,70,13,323. 75 by order dated 10th April, 1989. However, he did not accept the stock transfer by the company to its Nagpur depot to the extent of Rs. 1,58,625 on account of absence of requisite form "f" and consequently imposed tax liability. The company filed first appeal only against this turnover of stock transfer worth Rs. 1,58,625 to its Nagpur depot and also submitted form "f" bearing No. Z/o. 668458 in respect thereof. The company did not dispute the assessment made by the Assistant Commissioner (Assessment), Sales Tax, Allahabad, in respect of other transfers to the tune of Rs. 3,70,13,323. 75 which were duly supported by form "f" and as such assessment in respect of these stock transfers has become final. However, the Deputy Commissioner (Appeals) remanded the appeal to the assessing authority for the limited purpose of verifying the stock transfer of Rs. 1,58,625 made by the company to its Nagpur depot and also to verify the genuineness of form "f" bearing No. Z/o-668458 and the relationship of M/s. Jay Shree Tyres and Rubber Products with M/s. Jayshree Tea and Industries Ltd. The assessing authority after remand passed an ex parte assessment order afresh by rejecting the account books and by treating all the stock transfers by the company to its depots as sale under the Central Sales Tax Act by order dated 3rd January, 1992. However, the company has filed second appeal against the remand order of Deputy Commissioner (Appeals) before the Trade Tax Tribunal, which affirmed the order of remand. Thereafter the company challenged the ex parte assessment order by preferring appeal before the Deputy before the Deputy Commissioner (Appeals) who was again pleased to remand the proceedings to the assessing authority for reopening the entire proceeding and to made assessment. Company again filed second appeal before the learned Tribunal which dismissed the appeal by impugned order. Mr. Bharat Ji Agrawal has contended that this second remand made by the learned appellate authority is not legally justified and reopening of the assessment proceeding in respect of the entire stock transfers made by company to its Nagpur depot is also not legally correct inasmuch as, the assessment in respect of stock transfer worth Rs. 3,70,13,323. 75 has become final and binding on the Revenue, as well as, on the assessee when it was not disputed before the Deputy Commissioner (Appeals) in the first appeal. The learned Standing Counsel has submitted in reply that inquiry suggested by the Deputy Commissioner (Appeals) by setting aside the ex parte order of assessment was necessary for doing justice to the department, as well as, to the assessee. The Tribunal has agreed with and affirmed the order of remand made by the first appellate authority. In my view, remand order is not justified by the second time by the Deputy Commissioner (Appeals) and its affirmation by the learned Tribunal. The Assistant Commissioner (Assessment), Allahabad, has firstly accepted the account books and the stock transfers by the company to its depots excluding Nagpur. This assessment was not challenged and accepted by the company before the Deputy Commissioner (Appeals ). The only dispute is relating to stock transfer by the company of Rs. 1,58,625 made to Nagpur depot. The assessment which has become final and binding on both the Revenue and assessee cannot be reopened under the law except by proceeding under section 10b or 21 or 22 of the U. P. Trade Tax Act. In the present case, the assessing authority did not resort to the power conferred by the aforesaid sections. True, the Assistant Commissioner (Assessment) could not exercise the power under section 10b, but he could very well exercise the power under section 21 or 22 of the Act, as the case may be, if he had come across some information of material against the acceptance of account books in respect of the assessment already made by him but this has not been exercised. Therefore, reopening of the assessment which has become final in the matter is not legally correct. The Deputy Commissioner (Appeals) as well as the learned Tribunal have committed error of law by directing the assessing authority to reopen the assessment which has become final. Therefore, this finding is liable to be set aside.
(3.) I further find that the Deputy Commissioner (Appeals) as well as, learned Tribunal has also committed error of law by remanding second time the question of assessment relating to the stock transfer of Rs. 1,58,625 by the company to its Nagpur depot. In the first remand order the Deputy Commissioner (Appeals) had remanded the proceedings only for a very limited purpose of verifying the correctness of form "f" bearing No. Z/o-668458 in respect of the stock transfer of Rs. 1,58,625 to Nagpur depot and the relationship of M/s. Jay Shree Tyres and Rubber Products with M/s. Jayshree Tea and Industries Ltd. , and to pass the order of remand in respect of such stock transfer. The assessing authority committed an error of law by reopening the remand already finalised and made an ex parte remand. The Deputy Commissioner (Appeals) must have rectified the illegality committed by the assessing authority but instead of doing so he cannot remand the proceeding to the assessing authority with a free handle for de nova assessment forgetting all cannons of law and procedure. The learned Tribunal in the second appeal has blindly affirmed the second remand order made by the Deputy Commissioner and did not apply its mind to see that the inquiry ordered by the Deputy Commissioner (Appeals) in the first remand order had been complied with or not and whether the assessment in respect of the disputed stock transfer could be made consequently. What I find is that this second time remand order by the Deputy Commissioner (Appeals), as well as, by the learned Tribunal are fully unjustified in law and on facts. The learned Tribunal was itself in a position to determine the question of tax liability on the basis of finding remitted by the assessing authority on the relevant point that the company, M/s. Jai Shree Tyres and Rubber Products was also the proprietor of M/s. Jaishree Tea Industries Ltd. and form "f" bearing No. Z/o. 668458 was correctly issued in respect of the stock transfer by the company to its Nagpur depot. It is amply evident that if stock transfers by the company to its depots were supported by form "f", the same could not be treated as sale under the Central Sales Tax Act and no tax liability arose. On this fact no additional inquiry or investigation was called for. The learned counsel for the revisionist has submitted that the learned Tribunal was capable of recording the finding of fact also in the second appeal on the basis of record of the assessment proceeding. But the learned Tribunal has failed to discharge its statutory duty in affirming the second time remand order passed by the appellate authority. I am in full agreement with this contention and cannot uphold the second time remand order made by the appellate authority. However, the matter has to be remanded to the learned Tribunal for determining the question of tax liability in respect of the stock transfer of Rs. 1,58,625 by the company to its Nagpur depot supported by form "f" bearing No. Z/o-668458. For the aforesaid reasons, this revision is hereby allowed and the impugned order of remand dated 15th April, 1995, passed by Trade Tax Tribunal in Second Appeal No. 623 of 1993 (85-86 under the Central Sales Tax Act) are hereby set aside and the learned Tribunal is hereby directed under section 11 (8) of the U. P. Trade Tax Act to determine afresh on the basis of record and in the light of the observations made hereinabove after affording opportunity to the assessee as expeditiously as possible, April 19, 1996.;