R.L. Gulati, J. - (1.) THIS is a reference under Section 11(3) of the U.P. Sales Tax Act read with Section 9 of the Central Sales Tax Act, 1956, submitted by the Judge (Revisions) Sales Tax, Lucknow, at the instance of the Commissioner of Sales Tax, Lucknow.
(2.) THE assessee runs a rice and dal mill at Kanpur. The assessee was assessed to Central sales tax in respect of the assessment year 1958 -59, which is the year in dispute. There is no controversy about the turnover. The controversy relates to the rate of tax. It appears that the assessee had submitted 'C' forms in respect of sales amounting to Rs. 33,089.03, but did not submit 'C' forms with regard to the remaining turnover of inter -State sales. The Sales Tax Officer assessed the turnover covered by the 'C' forms at the confessional rate of one per cent, under Section 8(1) of the Central Sales Tax Act and the remaining turnover at the rate of 6 ¼ per cent, which was the rate with regard to such turnover at the material time. It appears that the assessee had made a request at the time of the assessment for the grant of further time for filing the remaining 'C' forms. The assessee appears to have been granted some time which, however, was not sufficient and the assessee could not produce the requisite 'C' forms before the assessment order was passed. The assessee went in appeal before the Judge (Appeals) and put forward the grievance that sufficient opportunity had not been granted to it by the Sales Tax Officer for filing the 'C' forms. It was stated before him that the remaining 'C' forms had in fact been filed in the office of the Sales Tax Officer just a day or two after the assessment order had been passed. This plea of the assessee found favour with the Judge (Appeals), who apparently was of the opinion that adequate opportunity had not been granted to the assessee for filing the remaining 'C' forms. Since the 'C' forms had already been filed, he verified them himself and found them to be in order. He, therefore, allowed relief to the assessee after taking into consideration the 'C' forms subsequently filed by the assessee. The Commissioner of Sales Tax was not satisfied with this order of the Judge (Appeals) and he accordingly applied in revision. It was contended before the revising authority that under Rule 5 -A of the Central Sales Tax (Uttar Pradesh) Rules, 1957, 'C' forms could be filed latest by the date of the assessment. Any 'C' forms filed thereafter could not be taken cognizance of. On this reasoning it was contended that the Judge (Appeals) had no jurisdiction to entertain the 'C' forms filed by the assessee after the date of the assessment order. The Judge (Revisions) did not agree with this contention of the Commissioner. He was of the opinion that the Judge (Appeals) could very well have set aside the assessment order with a direction to the Sales Tax Officer to make the assessment afresh, if he was satisfied that another opportunity should have been granted to the assessee to file the wanting 'C' forms. In such an event the Sales Tax Officer would have been obliged to take into consideration the 'C' forms which had already come on the record and the assessee would have naturally got the relief. The Judge (Revisions) thought that such being the position, the appellate authority could himself have taken into consideration the 'C' forms, as indeed he did in the instant case, and granted the necessary relief to the assessee. In other words, the view of the Judge (Revisions) was that if an appellate authority could bring about a result indirectly, he could do so directly also. He, therefore, refused to interfere with the order of the Judge (Appeals). The department is aggrieved and has brought this reference before us for our opinion on the following question of law : Whether in the circumstances of this case the 'C' forms filed after the passing of the assessment when insufficient time had been allowed could have been considered by the appellate authority.
(3.) BEFORE we answer this question, it is necessary to refer to some of the relevant provisions of law.;