- (1.) M. C. AGARWAL, J. By this revision petition under section 11 of the U. P. Trade Tax Act 1948 the revisionist challenges an order dated April 9, 1999 passed by the Trade Tax Tribunal, Bareilly whereby it allowed the dealer's second appeal No. 276 of 1994 for assessment year 1989-90 (Central) and remanded the matter to the assessing officer.
(2.) I have heard Sri Piyush Agrawal, learned counsel for the revisionist and Sri Surya Prakash, learned Standing Counsel for the respondent. The revisionist is a manufacturer of atta, maida and suji and had disclosed sales amounting to Rs. 5,68,67,696. 85 claimed to have been effected outside the State through commission agents. In respect of these consignment sales it had furnished declarations in form F to the extent of Rs. 5,09,21,477. 24 and sale notes amounting to Rs. 56,13,109. 60. Thus, there was a difference of Rs. 3,33,110 in respect of which there were neither form F nor sale notes. The dealer's explanation was that the difference was because in respect of some of the declarations in form F, the sale agents had mentioned only the invoice value of the goods and not the price for which they had sold the goods. This contention was not accepted and the assessing officer treated this amount of Rs. 3,33,110 as inter-State sales. A first appeal was dismissed by the Deputy Commissioner (Appeals) and the revisionist preferred the aforesaid second appeal contesting the assessment of Rs. 3,33,110 as inter-State sales. Before the Tribunal also, the dealer's contention was that the difference was because of the aforesaid account. The Tribunal in its order noted that the assessing officer has not investigated the matter and has without any investigation mentioned that on enquiry, no adverse fact was noticed. The Tribunal also stated that the assessing officer had observed that in the preceding year, the books of accounts of the dealer were accepted. But according to the Tribunal it was to be considered that for financial years 1987-88 and 1988-89 also the dealer had shown the consignment sales which were not accepted in view of a survey dated January 30, 1989 conducted by the Special Investigation Branch and, thus, the sales were treated as inter-State sales. The Tribunal, therefore, took the view that the assessing officer, as well as, the first appellate authority had not undertaken complete investigation in respect of sales claimed to have been made outside U. P. through the commission agents and, therefore, the assessment under the Central Sales Tax Act deserved to be set aside and the matter required to be remitted back to the assessing officer for making a fresh order, according to law, after completing the investigation. The Tribunal ordered accordingly and the dealer has come to this Court challenging the said order. The brief contention of the dealer is that its consignment sales to the extent of Rs. 5,65,34,586. 84 had been accepted by the assessing officer in respect of which the department did not take any action under section 10-B, etc. , and the dealer's first appeal as well as the second appeal were restricted to the sum of Rs. 3,33,110 only and the assessment order accepting the consignment sales had, thus, become final. It is contended that in such a situation when there was no appeal by the department and the dealer's appeal was restricted to the sum of Rs. 3,33,110 only, the Tribunal had no jurisdiction to set aside the entire assessment and reopen the matter relating to the turnover of Rs. 5,65,34,586. 84. Reliance is placed on a judgment of this Court in G. D. Steels and Gases Pvt. Ltd. v. Commissioner of Trade Tax, U. P. [1999] 115 STC 491; 1999 UPTC 35 in which it was held that part of the assessment order that has become final, cannot be challenged by the Commissioner in second appeal. In Hari Prasad v. Commissioner of Sales Tax 1995 UPTC 215 it has been held by this Court that the Tribunal has no general power of enhancement and it can exercise the power of enhancement on the Commissioner's appeal if the matter was in dispute before the first appellate authority. Thus, the Tribunal's jurisdiction while dealing with the aforesaid appeal of the dealer, was restricted to the sum of Rs. 3,33,110 only and it could not have set aside the assessment order with regard to the turnover of Rs. 5,65,34,586. 84 and ordered a re-investigation.
(3.) LEARNED Standing Counsel who placed reliance on the provisions of sub-section (5) of section 10 could not place any authority in support of the action of the Tribunal. The aforesaid provision has been considered by this Court in the aforesaid two judgments holding that the same does not confer jurisdiction on the Tribunal to order an enhancement on the assessee's appeal or on a second appeal by the Commissioner when the matter was not in dispute before the first appellate authority. Therefore, the Tribunal's order is without jurisdiction and deserves to be set aside. This revision petition is, therefore, allowed. The Tribunal's order under revision is set aside and the Tribunal shall dispose of the aforesaid appeal afresh, in accordance with law. Petition allowed. .;