- (1.) R. K. GULATI, J. This sales tax revision arises from the decision of the Sales Tax Tribunal, Division Bench, Aligarh dated March 8, 1989 by which three appeals in respect of the assessment year 1975-76 were decided. We are concerned with two cross appeals in this revision, one filed by the assessee and the other by the Revenue against the appellate order relating to the assessment for the year aforesaid which were made under the provisions of the U. P. Sales Tax Act, 1948 (for short "the Act") The third appeal which was directed against the assessment under the Central Sales Tax Act, 1956 and was decided by the said common order, is not the subject-matter of this revision.
(2.) THE facts of the case are brief on which there is not much dispute. THE book version of the assessee for the assessment year in dispute 1975-76 was rejected for the reason, beside others, that no account books were produced at the time of the assessment. THE assessment was made on best judgment taking into consideration the material which were found on the survey dated May 6, 1976 and was considered adverse to the assessee, amongst other things. Against the disclosed turnover of Rs. 5,73,99,691. 86, the assessment was made on the taxable turnover of sale and purchase at Rs. 7,06,88,729. 79. During the course of assessment proceedings the assessee challenged the jurisdiction of the assessing authority on the ground that its assessing authority was the Sales Tax Officer, Sector III, Aligarh and not the Sales Tax Officer (A) Sri G. S. Upadhyaya who had passed the impugned assessment order. THE challenge was however repelled by the assessing authority. THE assessee appealed against the assessment order. THE appellate authority allowed the appeal in part and gave a partial relief in the quantum of turnover that was brought to tax under the assessment order. THE challenge to the rejection of the account books as well to the jurisdiction of the assessing authority was not accepted by the appellate authority. THEreafter against the appellate order two cross appeals were filed before the Sales Tax Tribunal, one by the assessee and the other by the Revenue. THE Sales Tax Tribunal upheld the appellate order in so far it related to the question about the jurisdiction of the assessing authority and the rejection of account books. However the appellate order and the assessment order in other respects were set aside to the assessing authority with the directions to make the assessment afresh in the light of the directions given in the order of the sales Tax Tribunal and after affording an opportunity to the assessee for verification of the entries contained in the various exhibits and other materials which were found at the time of survey from the account books of the assessee. Feeling still aggrieved the assessee has filed this revision against the decision of the Sales Tax Tribunal, as already stated hereinabove. The learned counsel for the assessee contended that for the purposes of assessment the case of the assessee at the material time fell within the jurisdiction of the Sales Tax Officer, Sector III, Aligarh and the impugned assessment order which was made by Sri G. S. Upadhyaya, Sales Tax Officer (Administration), Aligarh was non est because he was not the assessing authority as contemplated under the Act and the Rules framed thereunder. The question therefore, for consideration is whether the assessment order which was made by Sri G. S. Upadhyaya was a valid assessment or void and without jurisdiction ? In order to pronounce upon the controversy, it is necessary to refer to certain provisions of the Act and the Rules framed thereunder. Section 2 (a) of the Act defines : "assessing authority" means any person authorised by the State Government to make any assessment under this Act. Rule 2 (h) of the U. P. Sales Tax Rules, 1948, as it stood at the material time defined the expression "sales Tax Officer"' inter alia, to mean : Sales Tax Officer of a circle appointed by the State Government to perform the duties and exercise the powers of an assessing authority in such circle, and includes a Sales Tax Officer or an Assistant Sales Tax Officer posted to such circle, by the Commissioner of Sales Tax. Rule 2 (c) says "circle" means "a sales tax circle notified under those rules and includes sub-circle similarly notified". Rule 3, inter alia, provides that State Government may by notification in the gazette create or abolish a circle or sub-circle or fix or re-fix the limits thereof. Sub-rule (3) of rule 3 states that where there are more than one Sales Tax Officers in a circle, the Commissioner shall determine the respective jurisdiction of each within that circle. There is an Explanation attached to rule 3 which envisages that in determining the respective jurisdiction of officers under sub-rule (2) or (3) it shall be open to the Commissioner to direct that an officer will exercise jurisdiction over such dealers or class of dealers, as may be specified by him and unless directed otherwise the successor in office of such officer shall exercise the same jurisdiction and may proceed with the cases from the stage at which they were left by such officers. There is another rule which is relevant for the purposes of this case, namely, rule 81 which provides for transfer of cases. Sub-rule (1) of rule 81 speaks of transfer of any case or class of cases by the Commissioner of Sales Tax at any stage from one assessing authority in a circle to another assessing authority or to any officer subordinate to him. Sub-rule (2) of that rule empowers the Assistant Commissioner (Executive) also to transfer any case or class of cases subject to the general control of Commissioner of Sales Tax at any stage from one assessing authority to another assessing authority, within his range.
(3.) THERE is no dispute between the parties that Aligarh was one of the "circles" formed under the Act. THERE were several sectors in that circle and for each sector there was a separate Sales Tax Officer who was appointed as the assessing authority. Sri G. S. Upadhyaya who was the Sales Tax Officer, Etah, was transferred as Sales Tax Officer, Aligarh by the Commissioner of Sales Tax, U. P. Lucknow by his order dated June 12, 1979. Subsequently, in partial modification of the order dated June 12, 1979 the Commissioner of Sales Tax, U. P. , Lucknow by his order No. 2560 dated July 28, 1979 appointed Sri Upadhyaya as Sales Tax Officer (A), Aligarh "circle" conferring upon him additional powers of drawing and disbursing officer and in compliance therewith Sri Upadhyaya took over charge on July 28, 1979, as Sales Tax Officer (A), Aligarh "circle". The subsequent order just referred also recited that Sri Upadhyaya will discharge his functions as Sales Tax Officer, Aligarh in terms of the order No. Vidhi - 1 (1)A-8-78-79-3682 dated February 17, 1979. It is relevant to point out that the order dated February 17, 1979 which was issued by the Commissioner of Sales Tax, inter alia, provided that all Sales Tax Officers who were posted as Sales Tax Officer (A) in different "circles" mentioned therein including Aligarh "circle" will also perform the functions of assessment work in respect of much dealers as may be assigned to them by the Assistant Commissioner (Executive), Sales Tax, of their respective range. The Assistant Commissioner (Executive), Sales Tax, Aligarh Region by his order No. 3332 dated October 25, 1979 transferred the assessment proceedings in the case of the assessee for the assessment year 1975-76 U. P. and Central along with other allied proceedings to Sri Ghanshyam Upadhyaya, Sales Tax Officer (A), "circle" Aligarh from Sales Tax Officer, Sector III, Aligarh. The contention of the learned counsel for the assessee that the Sales Tax Officer (A) "circle" Aligarh had no jurisdiction to make the impugned assessment, cannot be accepted. It has already been shown above that Sri Upadhyaya was appointed as Sales Tax Officer, Aligarh, under the order dated June 12, 1979 when he was transferred from Etah. He continued to be the Sales Tax Officer, Aligarh, when he was vested with the additional power of drawing and disbursing officer for Aligarh "circle". The authorisation as drawing and disbursing officer was made in partial modification of the earlier order by which Sri Upadhyaya was transferred as Sales Tax Officer, Aligarh. The order dated July 28, 1979 specifically clarified the position by providing that Sri Upadhyaya would also discharge the functions of assessment work in respect of such cases as may be assigned to him by the Assistant Commissioner (Executive), Sales Tax. This position clearly emerges when the said order is read along with the order of the Commissioner of Sales Tax, U. P. , Lucknow, dated February 17, 1979 of which a reference had been made in the former order. The doubts if any, about the functioning of the Sales Tax officer (Administration), Aligarh as the assessing authority were, therefore, dispelled with and any contention to the contrary is simply unsustainable. There is nothing in the Act or the Rules framed thereunder and indeed no provision was referred to the court which prohibits that a Sales Tax office (Administration) cannot simultaneously hold a dual position and discharge the functions of an administrative Sales Tax officer of a "sales Tax Circle" and also as an "assessing authority" of that circle even if such an authorisation has been made to that effect by the authority competent under law. This is what had been done in the instant case.;