B. R. ARORA, J. - (1.) THIS revision petition under section 15 of the Rajasthan Sales Tax Act, 1954, is directed against the order dated May 12, 1989, passed by the Rajasthan Sales Tax Tribunal, Ajmer.
(2.) THE assessee, M/s. Radhe Shyam Rajendra Kumar, Jodhpur, is running the business of hotel and restaurant at Ghantaghar, Jodhpur, and serves eatable sweet and namkeens, etc. , in its restaurant. For the assessment year 1982-83, the petitioner-assessee was assessed by the Assistant Commercial Taxes Officer, Ward II, Circle A, Jodhpur, vide assessment order dated August 20, 1983, at 5 per cent on the sales Rs. 2,32,300 and the learned Assistant Commercial Taxes Officer determined the sales tax payable amounting to Rs. 11,615 and also, imposed a penalty under section 7aa and section 16 (1) (n) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act" ). Dissatisfied with the order dated August 20, 1983, passed by the Assistant Commercial Taxes Officer, Ward II, Circle A, Jodhpur, the assessee preferred an appeal before the Deputy Commissioner (Appeals-I), Commercial Taxes, Jodhpur. THE Deputy Commissioner (Appeals-I), by his order dated May 14, 1984, allowed the appeal in part and held that the assessee was serving sweet, namkeens, etc. , to its customers in the restaurant itself and has not collected or recovered any amount of sales tax from the customers. THE Deputy Commissioner (Appeals), also found that taxable counter-sale has not been established and despite this, the tax at 5 per cent has been imposed on the entire sale. THE learned Deputy Commissioner (Appeals-I), also, held that in view of the Forty-sixth Constitutional Amendment, as, also, in view of the various judgments on the point, the sales tax imposed by the assessing authority on the sale prior to February 3, 1983, was wholly illegal and could not have been imposed. THE Deputy Commissioner (Appeals-I), therefore, remanded the case to the assessing authority with the direction to assess the assessee for its sales between February 3, 1983 to March 31, 1983, in the light of the Forty-sixth Constitutional Amendment and the judgments cited in the order after giving an opportunity of hearing, as required under rule 54 of the Rajasthan Sales Tax Rules, 1955. It was specifically mentioned in the order that as the assessee has not collected any sales tax on the sales made by its prior to February 3, 1983, the sales made prior to February 3, 1983, are exempted and as the sales prior to February 3, 1983, are exempted, the question regarding imposition of penalty under section 7aa and section 16 (1) (n) may, also, be reconsidered and appropriate action may also be taken in that respect also. After the remand of the case, though a specific finding was given by the Deputy Commissioner (Appeals-I), to assess the petitioner-assessee only with respect to the period between February 3, 1983, to March 31, 1983, the learned Assistant Commercial Taxes Officer, Ward II, Circle A, Jodhpur, again assessed the petitioner for the whole between April 1, 1982 to March 31, 1983 and reframed the assessment as was done by him earlier and maintained the sales tax and the penalty imposed by him earlier. Dissatisfied with the order dated June 29, 1985, passed by the Assistant Commercial Taxes Officer, Ward II, Circle A, Jodhpur, the assessee preferred an appeal before the Deputy Commissioner (Appeals-I), Commercial Taxes, Jodhpur, who, by his order dated November 21, 1985, dismissed the appeal filed by the assessee. Aggrieved with an order dated November 21, 1985, passed by the Deputy Commissioner (Appeals-I), rejecting the appeal filed by the assessee, the assessee preferred an appeal under section 14 of the Sales Tax Act before the Rajasthan Sales Tax Tribunal, Ajmer, and the Tribunal, by its order dated May 12, 1989, dismissed the appeal filed by the assessee. It is against this order that the present revision petition has been filed by the assessee under section 15 of the Act. Heard learned counsel for the petitioner and the learned counsel for the respondent. It is contended by the learned counsel for the petitioner that the Deputy Commissioner (Appeals-I), Jodhpur, by his order dated May 14, 1984, allowed the appeal filed by the assessee in part and held that the taxable counter-sale has not at all, been established in the case of the assessee and the sales of the petitioner-assessee prior to February 3, 1983 are exempted in view of the fact that the petitioner has not collected any sales tax on the aforesaid sales and remanded the case to the assessing authority to reassess the assessee for the sales between February 3, 1983 to March 31, 1983, in the light of the Forty-sixth Constitutional Amendment and the judgments mentioned in the order. When the remand of the case was made by the Deputy Commissioner (Appeals) for a particular purpose and restricted to sales of a particular period, the assessing authority was bound to confine itself to that area/period only and not beyond that. The learned assessing authority, therefore, committed an error in assessing the assessee for the whole year, for which he was not competent. The learned Deputy Commissioner (Appeals-I) as well as the learned Tribunal also committed an error is not taking into consideration this aspect of the matter. He has, also, submitted that he raised this ground before the Deputy Commissioner (Appeals-I) and that ground is specifically mentioned in the memo of appeal itself, but the learned Deputy Commissioner (Appeals-I) did not consider that aspect of the case. He further submitted that even if that ground would not have been taken before him even then it is pure question of law and it can be considered by this Court at this stage also. The learned counsel for the respondent, on the other hand, has supported the order passed by the Rajasthan Sales Tax Tribunal, Ajmer, and further submitted that the ground regarding the jurisdiction of the assessing authority after the remand, was not taken either before the assessing authority or before the Deputy Commissioner (Appeals-I) and, also, before the Tribunal and, therefore, he cannot be permitted to raise this ground at this stage. I have considered the rival submissions raised by the learned counsel for the parties and perused the record of the case. It is not in dispute that the Deputy Commissioner (Appeals-I), by his order dated May 14, 1984, allowed the appeal filed by the assessee and in view of the Forty-sixth Constitutional Amendment as well as the various judgments referred in the order, including the judgment of the Supreme Court in the case of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1980] 45 STC 212 and held that the sales prior to February 3, 1983, made by the assessee, were exempted from sales tax and consequently imposition of tax on such sales, was illegal. It was, also, held by the learned appellate authority that the taxable counter-sale has not been established and dispute that, a tax at 5 per cent has been imposed on the entire sales. He, therefore, remanded the case to the assessing authority to assess the assessee only for a period between February 3, 1983 to March 31, 1983. So far as the order regarding the taxable liability of the petitioner as assessed prior to February 3, 1983, is concerned, it was held that the assessee is not liable to pay sales tax for that period. The learned appellate authority, also, directed the assessing authority to reconsider the case of imposition of penalty in view of the fact that no sales tax prior to the period of February 3, 1983, was chargeable from the assessee. The scope of the enquiry by the assessing authority was, therefore, very much limited. As per the directions to the assessing authority, he was only to assess the petitioner-assessee so far as the sales between February 3, 1983 to March 31, 1983, are concerned. The appellate authority while remanding the case to the assessing authority controlled the jurisdiction of the assessing authority by imposing curbs in the remand order itself. The appellate authority did not remand the case for fresh assessment but indicated the specific area to which the fresh assessment was to be confined and, thus, limited the jurisdiction of the Assistant Commercial Taxes Officer to assess the petitioner-assessee for that period only. If the order would have been passed by the appellate authority directing the Assistant Commercial Taxes Officer for fresh assessment then the assessing authority would have all the jurisdiction available to him as if it was an original assessment proceeding. But when the remand order was made with certain restrictions and directions then the assessing authority was to act in accordance with the directions and restrictions as mentioned in the remand order itself. In the present case, the appellate authority directed the Assistant Commercial Taxes Officer to assess the petitioner only with respect to the sales effected between the period from February 3, 1983 to March 31, 1983 and to redetermine the question of levying the penalty as the sales prior to February 3, 1983 were not chargeable to tax. It was, therefore, an enquiry restricted to a specific area and it was not open for the Assistant Commercial Taxes Officer to proceed to determine the entire turnover of the petitioner-assessee for the assessment year 1982-83. When the competent appellate forum remanded the case back to its lower authority with certain directions given by the appellate authority then he had to act in accordance with that direction. He cannot question whether the decision of the appellate authority or the directions given by it was correct or not and the respondent is bound as long as it remains in force. Admittedly, no appeal was filed against the order dated May 14, 1984 and, therefore, that order became final. The order passed by the assessing authority was, thus, beyond his jurisdiction. He was not supposed to make de novo the assessment of the assessee. The jurisdiction of the assessing authority was limited to the extent as was directed by the appellate authority. This aspect of the case was neither considered by the Deputy Commissioner (Appeals-I) second time nor was it considered by the Rajasthan Sales Tax Tribunal as it does not find place in their orders. Since it is a pure question of law and goes to the root of the matter and does not require any further investigation into the fact and, therefore, the objection taken by the learned counsel for the non-petitioner has got no merit. Even, otherwise, in view of the judgment of the Supreme Court in the case of Northern India Caterers (India) Ltd. [1980] 45 STC 212, the sales made in the restaurant to its customers who come to eat in this restaurant is not chargeable to tax. It is a fact borne out from the record that the petitioner did not charge any tax on the sales made by it and, therefore, the sales of eatable sweet and namkeens, etc. , in view of this judgment, as well as in view of the Forty-sixth Constitutional Amendment, is not chargeable to tax for the period prior to February 3, 1983. Consequently, this revision petition, filed by the petitioner, is allowed. The order dated May 12, 1989, passed by the Rajasthan Sales Tax Tribunal, Ajmer, as well as the order dated November 21, 1985, passed by the Deputy Commissioner (Appeals-I), Jodhpur, and the order dated June 29, 1985, passed by the Assistant Commercial Taxes Officer, Ward II, Circle A, Jodhpur, are set aside and the case is remitted to the respondent to assess the petitioner-assessee for the period between February 3, 1983 to March 31, 1983, in accordance with the directions given by the Deputy Commissioner (Appeals-I), Commercial Taxes, Jodhpur, in his order dated May 14, 1984. Petition allowed. .;