- (1.) M. C. AGARWAL, J. These revision petitions are directed against a common order dated November 25, 1997 passed by the Trade Tax Tribunal, Agra, whereby it dismissed the revisionist's Second Appeal Nos. 59, 60 and 61 of 1997 for the assessment years 1983-84, 1985-86 and 1986-87.
(2.) I have heard Sri Bharat Ji Agrawal, learned counsel for the revisionist assisted by Sri Piyush Agrawal, Advocate and Sri Surya Prakash, learned Standing Counsel for the respondent. Assessments for all the three years have been made by the assessing officer. The Deputy Commissioner (Executive) called for the records of the case and exercising revisional jurisdiction under section 10-B of the U. P. Trade Tax Act, set aside the assessments and remanded the matter to the assessing officer for making a fresh assessment. The revisionist is M/s. Indian Oil Corporation Ltd. , a Government of India undertaking and the order passed by the Deputy Commissioner under section 10-B states that on examination of the records of the case, he found that the assessment order was not in accordance with law because excise duty paid on the petroleum product has not been included in the turnover, particularly in relation to bond to bond supply. The dealer-revisionist contended that there was no bond to bond supply during the year and there was no exclusion of excise duty from the turnover. The Deputy Commissioner set aside the assessments and remanded the matter to the assessing officer for verification of what was stated by the assessee because the latter had not produced the books of accounts before him. The dealer-revisionist preferred the aforesaid appeals to the Tribunal and contended that there was no material on record to justify the revision of the assessment orders and the Deputy Commissioner had no jurisdiction to do so. The Tribunal reproduced section 10-B in its order and held that the Deputy Commissioner had the jurisdiction to revise an assessment and, therefore, dismissed the appeals.
(3.) THE contention of the learned counsel for the revisionist is that the Tribunal has not dealt with the other contention of the petitioner that there was no material on record to justify revision of the order under section 10-B as there was no illegality or impropriety in the order. A perusal of the impugned order passed by the Tribunal shows that the Tribunal has not discussed the dealer's case on merits. THE dealer's contention was that no illegality or impropriety in the assessment order was shown by the Deputy Commissioner in the order under section 10-B and, therefore, the exercise of jurisdiction under section 10-B was unjustified. THE learned Standing Counsel contended that the excise duty is a part of the turnover and that the same was not included in the turnover by the assessee. This contention is not legally correct. What is includible in the turnover is the price that a buyer has to pay for the goods purchased by him to the seller. THE excise duty does not come into the picture. THE learned Deputy Commissioner has referred the case of Mcdowell and Co. v. Commercial Tax Officer [1985] 59 STC 277 (SC); 1985 UPTC 747 (SC) but has not mentioned that the facts of the present dealer's case were similar to the case of Mcdowell [1985] 59 STC 277 (SC); 1985 UPTC 747 (SC), and the present dealer's buyers were required to pay the excise duty directly or that payment of the excise duty was shown in the bills as an item charged to the customer but it was not included in the turnover. However, since the Tribunal has not discussed the merits of the Deputy Commissioner's order or of the contention of the dealer, it is not necessary for me to elaborate further. In view of the Tribunal's failure to deal with the merits of the case, its order dismissing the revisionist's appeals, is not legally sustainable.;