- (1.) M. C. AGARWAL, J. By this revision petition under of the U. P. Sales Tax Act the revisionist challenges an order dated May 15, 1989 passed by the Sales Tax Tribunal, Kanpur, whereby, it dismissed the dealer's appeal against an order passed by the Deputy Commissioner (Executive), Sales Tax, Kanpur, revising an order dated September 29, 1984 passed by the assessing officer under section 21 of the Act and after holding that the turnover of tyres and tubes of animal driven vehicles was taxable under the provisions of the Act remanding the matter to the assessing officer for determination of the quantum of turnover.
(2.) I have heard Sri Bharat Ji Agrawal, learned counsel for the revisionist, and Sri H. R. Mishra, learned Standing Counsel for the opposite party. The proceedings relate to the assessment year 1979-80 for which the assessment order was passed by the assessing officer on March 25, 1984 in which the turnover of the tyres and tubes was treated as exempt. Subsequently on the basis of some information that some turnover of the dealer might have escaped assessment, proceedings under section 21 of the Act were initiated by the assessing officer and after verifying the same he passed an order dated September 29, 1984 holding that no turnover has escaped assessment. It is this order dated September 29, 1984 passed by the assessing officer that was revised by the learned Deputy Commissioner (Executive), holding that exemption granted to the aforesaid turnover was wrong and directing the assessing officer to tax the same after determining its quantum.
(3.) THE assessee preferred an appeal to the Tribunal challenging the order passed under section 10b on various grounds including (i) that the turnover of A. D. V. tyres and tubes was not the subject-matter of the orders under section 21 and hence that order could not be revised under section 10b, (ii) that the Deputy Commissioner (Executive) has no jurisdiction to initiate proceedings under section 10b and (iii) that the order directing the assessment of the said turnover was otherwise unjustified. THE Tribunal noted that the appellant before it had paid only 15 per cent as court-fee and therefore it could not go into the merit of the case and could deal only with legality of the order of remand. THE Tribunal examined the order under section 10b with this limited view and upheld the same. As is evident, the Deputy Commissioner in his order under section 10b had not quantified the tax payable on the disputed turnover and therefore as held by this Court in Premier Venyl Flooring Ltd. v. Commissioner of Sales Tax 1993 UPTC 1078, the payment of the minimum court fees was sufficient and the appeal had to be decided on merits on all the points raised therein. The Tribunal has decided only one point on merit and that was about the revisability of the order dated September 29, 1984 by which the assessing officer had discharged the notice under section 21 of the Act. Relying upon a judgment of the honourable Supreme Court in Kundan Lal Srikisan v. Commissioner of Sales Tax [1987] 65 STC 62; 1987 UPTC 404, the Tribunal held that the order dated September 29, 1984 amounts to an order of assessment and therefore, that could be revised under section 10b. The honourable Supreme Court has held that once a notice under section 21 has been issued, the original order of assessment gets reopened and thereafter any order made under section 21 of the Act alone would be the order of assessment. In that case the assessing officer had after necessary enquiry under section 21 held that no turnover had escaped the assessment and had ordered that no tax would be levied now the business man is declared as free from paying any more tax under section 21. The honourable Supreme Court held that this subsequent order amounted to an assessment order reassessing turnover already assessed.;