- (1.) M. C. AGARWAL, J. These two revision petitions by the dealer are directed against a common order dated October 13, 1997 passed by a Division Bench of the Trade Tax Tribunal in Commissioner's second appeals Nos. 276 and 277 of 1997 for the assessment year 1994-95 pertaining to assessments under the U. P. Trade Tax Act, 1948 and the Central Sales Tax Act, 1956.
(2.) I have heard Sri Bharat Ji Agrawal, learned counsel for the revisionist and Sri Surya Prakash, learned Standing Counsel for the respondent. The question of law involved in this revision petition is whether the Trade Tax Tribunal while hearing a second appeal preferred by the Commissioner under section 10 (2) of the U. P. Trade Tax Act (hereinafter referred to as "the Act") has the power to entertain a dispute raised by the Commissioner that does not arise out of the first appellate order. The dealer is a manufacturer of iron and steel. There was a survey at the business premises of the assessee when some incriminating material was recovered. The dealer had disclosed a gross turnover (U. P.) at Rs. 1,29,42,946 admitted to be taxable at the rate of 4 per cent and another turnover of iron and steel amounting to Rs. 1,56,22,747 admitted to be taxable at the rate of 2 per cent for the purposes of Central sales tax. It had declared a turnover of Rs. 3,12,080 which was admitted to be taxable at the rate of 4 per cent. Because of a survey the assessing officer rejected the books of account and the returned turnover and estimated an additional turnover at Rs. 3,28,64,200 taxable at the rate of 4 per cent under the U. P. Trade Tax Act. The turnover of Rs. 1,56,22,747 was not disturbed. As regards the assessment under the Central Sales Tax Act the assessing officer estimated an additional turnover of Rs. 30 lakhs taxable at the rate of 8 per cent.
(3.) AGAINST the aforesaid assessments the dealer preferred appeals to the Deputy Commissioner (Appeals) wherein it did not challenge the quantum of turn-over and contested only the rate of tax on certain parts of the turnover. The learned Deputy Commissioner (Appeals) held that out-of the turnover of Rs. 3,28,64,200 a part thereof to the extent of Rs. 1 crore was taxable at the rate of 2 per cent while the remaining was taxable at the rate of 4 per cent. In relation to the assessment under the Central Sales Tax Act the learned Deputy Commissioner (Appeals) held that an additional turnover of Rs. 30 lakhs was taxable at the rate of 4 per cent as against 8 per cent assessed by the assessing officer. AGAINST these orders the Commissioner of Trade Tax preferred appeals to the Tribunal challenging the aforesaid orders of the Deputy Commissioner (Appeals ). In preferring the appeals, the Commissioner also set up grounds challenging the estimate of the concealed turnover as made by the assessing officer and praying that the estimate made by the assessing officer being very low the assessment of concealed turnover be enhanced. Before the Tribunal it was contended that the assessee's appeal before the Deputy Commissioner (Appeals) were restricted to the rates of tax only and, therefore, the Commissioner could not challenge the estimate of turnover as made by the assessing officer in the appeals preferred by him and the Tribunal had no power to entertain any such plea from the Commissioner. This contention was rejected by the Tribunal and allowing the Commissioner's appeals it set aside the assessment orders and remanded the matter to the assessing officer for redetermination of the turnover in the light of the discussion made and directions given in the remand order. It is this view of the Tribunal that is challenged in the present revision petitions. Appeals against the assessment order have been provided for in section 9 of the Act. The relevant portions of section 9 (1) and (3) are as under : " (1) Any dealer or other person aggrieved by an order made by the assessing authority, other than an order mentioned in section 10-A or sub-section (6) of section 13-A, may, within thirty days from the date of service of the copy of the order, appeal to such authority as may be prescribed. " " (3) The appellate authority may, after calling for and examining the relevant records and after giving the appellant and the Commissioner of Sales Tax a reasonable opportunity of being heard or as the case may be, after following the procedure prescribed under sub-section (1-A) - (a) in the case of an order of assessment or penalty, - (i) confirm or annul such order; or (ii) vary such order by reducing or enhancing the amount of assessment or penalty, as the case may be, whether such reduction or enhancement arises from a point raised in the grounds of appeal or otherwise; or (iii) set aside the order and direct the assessing authority to pass a fresh order after such inquiry as may be specified; or (iv) direct the assessing authority to make such inquiry and to submit its report within such time as may be specified in the direction or within such extended time as it may allow from time to time, and on the expiration of such time the appellate authority may, whether the report has been submitted or not, decide the appeal in accordance with the provisions of the preceding sub-clauses; or (b) in the case of any other order, confirm, cancel or vary such order. " It is trite law that under section 9 of the Act the Revenue has no right of appeal and it is only a dealer or other person aggrieved by the order of the assessing authority who can file an appeal under section 9 of the Act. The dealer-revisionist had filed appeals to the Deputy Commissioner (Appeals) under section 9 of the Act and it is conceded that the Commissioner of Trade Tax had no right of appeal against the assessment orders. If the assessment order was legally erroneous or factually improper the Commissioner could himself revise the order in exercise of powers under section 10-B of the Act.;