@JUDGMENTTAG-ORDER
A.K. Patnaik, C.J.@mdashThis is a reference u/s 44(3) of the Madhya Pradesh General Sales Tax Act, 1958.
2. The facts as stated in the statement of case drawn up by the Board of Revenue are that the applicant Chhota Bhai Jetha Bai Patel and Co. is running the business of tendu leaves at Rajnandgaon. For the period November 5, 1964 to October 24, 1965 the applicant was assessed for sales tax under the M.P. General Sales Tax Act (for short, "the State Act") and as well as under the Central Sales Tax Act (for short, "the Central Act") by the Sales Tax Officer, Rajnandgaon by order dated November 15, 1966. The Additional Commissioner of Sales Tax, Jabalpur, however, in exercise of powers of revision u/s 39(2) of the State Act, found that such orders of assessment were erroneous and prejudicial to the interest of Revenue. By order dated January 29, 1973, the Additional Commissioner of Sales Tax, Jabalpur, set aside the order of assessments passed under the State Act and remanded the case back for assessments in accordance with law and the observations in the said order. By another order dated April 8, 1973, the Additional Commissioner of Sales Tax, Jabalpur, set aside the order of assessments passed under the Central Act and remanded the case for assessments in accordance with law and the observations in the said order. Thereafter, fresh assessments were made by the Additional Assistant Commissioner of Sales Tax, Raipur, by orders dated January 31, 1976. Aggrieved by the said orders of assessments dated January 31, 1976, the applicant filed appeals before the Appellate Deputy Commissioner of Sales Tax, Raipur and by the orders dated April 21, 1978 and April 29, 1978, the Deputy Commissioner of Sales Tax, Raipur allowed the appeals in part under the State Act and the Central Act. Aggrieved by the said orders passed by the Appellate Deputy Commissioner of Sales Tax, Raipur, the applicant filed second appeals before the Board of Revenue, Gwalior, Madhya Pradesh and by order dated February 24, 1981 the Board of Revenue held, relying on K.L. Kochar & Co. v. Sales Tax Officer, Gwalior, Madhya Pradesh reported in 1971 28 STC 473(sc) that on remand of the case by the Additional Commissioner of Sales Tax, Jabalpur, the Additional Assistant Commissioner of Sales Tax could not have made the fresh assessments as the Sales Tax Officer had made the original assessments and the Additional Commissioner of Sales Tax had passed orders in revision u/s 39(2) of the State Act on the said orders passed by the Sales Tax Officer. The Board of Revenue further held that since the Sales Tax Officer has no jurisdiction to assess a turnover beyond Rs. 30 lakhs at the relevant time and the turnover of the applicant was beyond Rs. 30 lakhs the correct procedure in such a case would be for the Additional Commissioner of Sales Tax to pass final orders himself u/s 39(2) of the State Act. Aggrieved by the said order of the Board of Revenue dated February 24, 1981, the applicant filed an application for reference u/s 44(1) of the Act, before the Tribunal for referring the questions of law which arose out of the orders passed by the Board of Revenue, but, the same was rejected by the Board of Revenue. Thereafter, the applicant moved the High Court for reference and by order dated February 13, 1989
"Whether, in the facts and circumstance of the case, the Tribunal was right in directing the Additional Commissioner of Sales Tax to pass final order u/s 39(2) of the M.P. General Sales Tax Act, 1958?"
3. Mr. Dubey, learned Counsel for the applicant, submits that the Additional Commissioner of Sales Tax by his order dated January 29, 1973 remanded the case back for further assessments in accordance with law and against the said order dated January 29, 1973, no proceedings were taken and hence the said order had become final and the Board of Revenue could not have directed that the Additional Commissioner should have himself made the assessments u/s 39(2) of the State Act. He further submits that as a matter of fact further assessments were made by the Additional Assistant Commissioner of Sales Tax, Raipur and at this stage, therefore, the Board of Revenue had no jurisdiction whatsoever to alter the order dated January 29, 1973 of the Additional Commissioner of Sales Tax which had become final.
4. Mr. Bajaj, learned Counsel for the respondents, submits that since the turnover of the applicant for the relevant period exceeded Rs. 30 lakhs, the Sales Tax Officer who made the original assessments could not any longer have the jurisdiction to make the fresh assessments after the remand and it is this reason which had weighed with the Board of Revenue to take a view that the correct procedure in such a case would be that the Additional Commissioner of Sales Tax makes the assessments in exercise of his powers u/s 39(2) of the State Act.
5. Section 39(1) of the State Act, which contains the power of revision of Commissioner is quoted herein below :
"The Commissioner may, either of his own motion or on application by a dealer or person made within the prescribed period from the date of the order, call for the record of the proceeding in which any order was passed, and on receipt of the record may make such enquiry or cause such an enquiry to be made, as he considers necessary and subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the dealer or person, as he thinks fit :
Provided that the Commissioner shall not revise any order under this Sub-section,--
(a) where an appeal against the order is pending before any authority specified in Sub-section (1) of Section 38, or where if such appeal lies, the time within which it may be filed has not expired ; or
(b) where a second appeal against the order has been filed.
Explanation.--An order by the Commissioner declining interference shall not be deemed to be an order prejudicial to the dealer or person."
6. Interpreting the aforesaid provisions of Sub-section (1) of Section 39 of the State Act, the High Court of Madhya Pradesh has held in the case of K.L. Kochar & Co. v. Sales Tax Officer 1971 28 STC 473(HC) that the Commissioner in exercise of powers of Sub-section (1) of Section 39 of the State Act has to make an order on the records of the proceedings in which the orders were passed. The High Court of Madhya Pradesh has further held in the case of K.L. Kochar & Co. v. Sales Tax Officer [1971] 28 STC 473(HC) that the power of Commissioner under Sub-section (1) of Section 39 of the Act is subject to the provisions of the State Act and cannot be exercised to issue directions to make an assessments contrary to the provisions of the State Act. This view was taken by the High Court of Madhya Pradesh in the aforesaid case of K.L. Kochar & Co. v. Sales Tax Officer [1971] 28 STC 473(HC) as it was found in that case that after the remand of the case by the Commissioner in a revision against the order passed by the Additional Assistant Sales Tax Officer, the Sales Tax Officer had issued fresh notice u/s 18(6) for initiation of further assessments proceedings beyond the period of limitation prescribed in the said provisions of the Act and the High Court of Madhya Pradesh held that the word "remand" used by the Commissioner in his order passed u/s 39 of the State Act, in its ordinary grammatical and well-understood connotation, only means the sending back of a case or proceeding to that Tribunal or authority which had dealt with or considered it at some prior stage for taking some further action thereon.
7. In the present case, the Additional Commissioner of Sales Tax in his order dated January 29, 1973 set aside the assessments under the State Act and directed that the case is remanded back to the Sales Tax Officer authority for assessments in accordance with law and the observations in that order. Similarly, the Additional Commissioner of Sales Tax in his order dated April 8, 1973 passed in the case under the Central Act directed that the case is remanded back to the assessing authority for assessments according to law and the observations in the said order. Remand of the case for assessments according to law would mean remanded back to the assessing authority who under the law has the power to make the assessments. Admittedly in this case, the Sales Tax Officer had no jurisdiction to make the assessments under the law as the turnover of the applicant was beyond Rs. 30 lakhs and it was the Additional Assistant Commissioner of Sales Tax who had the jurisdiction to make assessments up to turnover of Rs. 30 lakhs. The Additional Commissioner had passed the orders of remand in the revisions on the assessments proceedings and the Additional Assistant Commissioner could pass fresh assessments orders in the said assessments proceedings. The Board of Revenue thus erred in holding that in such a situation the Additional Commissioner of Sales Tax should make the assessments in exercise of the powers u/s 39(2) of the State Act.
8. Moreover, as has been rightly submitted by Mr. Dubey, learned Counsel for the applicant, the Additional Commissioner of Sales Tax had passed the orders of revision way back on January 29, 1973 and April 8, 1973 and the said orders passed by the Additional Commissioner of Sales Tax were not disturbed by any authority or court and had thus become final. The Board of Revenue could not have altered the said orders passed by the Additional Commissioner of Sales Tax in the revision and could not have held that the Additional Commissioner of Sales Tax should make the final order u/s 39(2) of the State Act.
9. We accordingly answer the question referred to us as indicated above in the negative and hold that the Tribunal was not right in directing the Additional Commissioner of Sales Tax to pass final orders u/s 39(2) of the State Act. The reference is disposed of accordingly and the Tribunal shall pass the orders u/s 44(5) of the M.P. General Sales Tax Act, 1958 accordingly.
10. Reference Nos. 17-1-81 and 18-1-81 made pursuant to the orders passed by this Court in M.C.C. No. 192 of 1983 and M.C.C. No. 193 of 1983 Reported as
