TMI Blog1982 (1) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... ns) then passed an order dated 12th June, 1980, in conformity with the judgment of the High Court subjecting the turnover of the applicant to tax at the rate of 7 per cent. The Supreme Court reversed the view of this Court in the case of Commissioner of Sales Tax v. S.S.R. Syringes and Thermometers 1973 Law Diary 178 on 25th March, 1981, in Civil Appeal No. 151 of 1981 in the dealer's own case relating to the assessment year 1973-74 [reported as Indo International Industries v. Commissioner of Sales Tax [1981] 47 STC 359 (SC); 1981 UPTC 481 (SC)] and held that glass syringes were taxable up to 30th November, 1973, at the rate of 4 per cent as "hospital equipment" under entry 44 of the First Schedule to the Act. The dealer then moved an application under section 22 of the Act for rectification of the order dated 12th June, 1980, before the Sales Tax Tribunal which had, in the meantime, replaced the Additional Judge (Revisions), Sales Tax, seeking reduction of the tax liability by recalculating it at the rate of 4 per cent, instead of 7 per cent, in view of the judgment of the Supreme Court. This application was rejected by the Tribunal. The Tribunal was of the view that the dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urns filed by him or at any stage in any proceedings under this Act, whichever is greater; or (b) where some of the returns for the assessment year have not been filed or no return has been filed for such year, the amount of tax or fee due under this Act on the turnover of sales or purchases, as the case may be, admitted by the appellant in the returns, if any, filed by him or at any stage in any proceedings under this Act, or 20 per cent of the amount of tax or fee assessed, whichever is greater, and Provided further that the appellate authority may, for special and adequate reasons, to be recorded in writing, waive or relax the requirements of clause (b) of the preceding proviso. (2) The appeal shall be in the prescribed form and shall be verified in the prescribed manner. (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, (a) in the case of an order of assessment or penalty, (i) confirm, reduce, enhance or annul the order of assessment or of penalty or both; or (ii) set aside the order and direct the assessing authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revising authority may transfer any case or class of cases pending before itself to any additional revising authority, and may likewise transfer any case pending before an additional revising authority to another additional revising authority or to itself. (4) The revising authority or any additional revising authority on an application of the dealer, may, after giving the Commissioner of Sales Tax an opportunity of being heard stay the realisation of any amount of tax, fee or penalty payable by him under an order against which an appeal or revision is pending: Provided that no such application shall be entertained unless the dealer has furnished satisfactory proof of the payment of not less than one-third of the disputed amount of tax, fee or penalty in addition to the amount of tax or fee required to be deposited by him under section 9: Provided further that the revising authority or the additional revising authority, as the case may be, may, for special and adequate reasons to be recorded in writing, waive or relax the requirements of the preceding proviso in respect of the disputed amount of tax, fee or penalty: Provided also that no stay order under this sub-section s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority or the additional revising authority, as the case may be, refused to refer a case under sub-section (1) he shall by order in writing inform the applicant accordingly, and the applicant may then within thirty days from the date on which he receives copy of the order refusing to state the case, withdraw his application. If he does so, the fee paid shall be refunded. (3) The provisions of sub-section (1) shall also be applicable to the Commissioner of Sales Tax with the modification that it shall not be necessary for him to deposit any fee. (4) If on any application being made under sub-section (1) or (3), the revising authority or the additional revising authority, as the case may be, refuses to state the case on the ground that no question of law arises, the person aggrieved, or the Commissioner of Sales Tax, as the case may be, may, within ninety days from the date on which he is served with notice of refusal, apply to the High court and the High Court, if it is not satisfied with the correctness of the decision of the revising authority or the additional revising authority, as the case may be, may, require the revising authority or the additional revising authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such reference, the excess tax paid shall be refunded in accordance with the provisions of this Act. (9) Section 5 of the Limitation Act, 1963, shall apply to applications under sub-sections (1), (3) and (4). Section 11-A. Manner in which references under section 11 are to be heard.When any case has been referred to the High Court under section 11 it shall be heard by a Bench of not less than two Judges of the High Court and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges: Provided that where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall then be heard upon that point only by one or more of other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. Section 22. Rectification of mistakes.-(1) The assessing, appellate, revising or additional revising authority may, at any time within three years from the date of any order passed by it, rectify any mistake apparent on the record: Provided that no such rectification, which has the effect of enh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment brought about by section 31 of the Act does not make the judgment of the High Court a nullity and the judge (Revisions) was not free to ignore it for any reason whatsoever.' The question is whether this view of the High Court is correct? The answer to the question depends on the answer to the further question whether the proceedings for the assessment of the sales tax had become final after the High Court's judgment dated 24th July, 1961, or whether, after that judgment, something remained to be done by the Additional judge (Revisions)? 7.. Sub-section (6) of section 11 of the Act provides that the High Court, upon hearing the reference, shall decide the questions of law and shall deliver its judgment thereon and shall send its copy to the revising authority and the Commissioner of Sales Tax, 'and the revising authority shall thereupon pass such orders as are necessary to dispose of the case in conformity with such judgment'. So, while the Additional Judge (Revisions) was in seisin of the case for the limited purpose for passing such orders as were necessary to dispose it of in conformity with the judgment of the High Court, it cannot be gainsaid that he was in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that order (dated 28th December, 1968) was in favour of the department. In fact, any suggestion or observation of the High Court for seeking any other mode of redress is beside the point for the State felt aggrieved against the impugned judgment of the High Court dated 11th February, 1970, and has come up in appeal against it. And now that this court is in seisin of the case, it would be a work of supererogation to require the parties, or any of them, to go back to the Additional Judge (Revisions) or the High Court for an order." In Commissioner of Sales Tax, U.P. v. Sholamal Zalim Singh [1977] UPTC 376, a Division Bench of this Court observed thus: "...... The modification in the assessment was made by the Judge (Revisions) when he passed an order in conformity with the decision of this Court. The standing counsel urged that in substance when the court answered the question, it modified the assessment. We are unable to agree with this contention, for the jurisdiction of this Court on a reference is purely advisory. The fact that after it gives its opinion on the question referred, the revising authority passed an order in conformity with that decision, does not alter the chara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application under sub-section (1), or sub-section (3), as they stood immediately before the said date, was rejected by the revising authority or an additional revising authority on the sole ground that the period of one hundred and twenty days for making the reference as specified in the said subsection (1) has expired, such applicant may apply for revision of the order made under sub-section (2) of section 10, to the High Court within sixty days from the said date on the ground that the case involves any question of law. (4) No application for revision under sub-section (1) or sub-section (2), shall be entertained, unless it is accompanied by a treasury chalan showing a deposit of two hundred and fifty rupees under the head 040-Sales Tax-Receipts under the Central/State Sales Tax Act-(4) other receipts: Provided that no such deposit shall be necessary in the case of an application for revision by or on behalf of the Commissioner of Sales Tax. (5) Every application for making a reference to the High Court under subsection (1) or sub-section (3), as they stood immediately before the said date, pending before the revising authority or an additional revising authority on the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs: Provided further that no such rectification, as has the effect of enhancing the assessment, shall be made unless the authority concerned has given notice to the dealer or the person concerned of his intention to do so and has allowed him a reasonable opportunity of being heard." Further amendments were made by U.P. Act No. 12 of 1979, of which the relevant were these section 10 of the Act was replaced by a new section 10 in the following terms: "10. Sales Tax Tribunal.-(1) There shall be a Sales Tax Tribunal consisting of a President and such other members as the State Government may from time to time deem it necessary to appoint from amongst- (a) The persons who have been, or are qualified to be judges of the High Court; and (b) the persons who hold or have held a post not below the rank of Deputy Commissioner of Sales Tax: Provided that where the Tribunal consists of one or more persons who have been Judges of a High Court then he or one of them shall be appointed the President. (2) Any person aggrieved by an order passed by an appellate authority under section 9 or the revising authority under section 10-B or by a decision given by the Commissioner of Sales T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er that section. (8) No order passed under this section for the stay of recovery of tax, fee or penalty shall remain in force for more than thirty days unless the appellant furnishes adequate security to the satisfaction of the assessing authority concerned for payment of the outstanding amount. (9) The members of the Tribunal shall sit in such benches of one, two or more members as may be constituted from time to time, and do such work of the Tribunal as may, subject to sub-section (10) and the rules, be allotted to them, by order or in accordance with the directions of the President of the Tribunal. (10)(a) An appeal against the order of appellate authority under section 9 shall be heard and disposed of- (i) by a bench of one member, where such order is passed by an Assistant Commissioner (Judicial) and the amount of tax, fee or penalty in dispute does not exceed five thousand rupees; (ii) by a bench of two members, in any other case. (b) An appeal against an order passed under section 10-B shall be heard and disposed of by a bench of two members. (c) An appeal against an order passed under section 35 shall be heard and disposed of by a bench of three members. (d) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial cases.-(1) Any person aggrieved by an order made under sub-section (2) of section 10 as it stood before its substitution by the Uttar Pradesh Sales Tax (Amendment and Validation) Act, 1978, or under sub-section (4) or sub-section (5) of section 10 as substituted by the said Act or by an order passed under section 22 by the Tribunal; may, within ninety days from the date of service of such order apply to the High Court for revision of such order on the ground that the case involves any question of law: Provided that, where such order was served on the person concerned at any time before the date of the commencement of this section, as substituted by the Uttar Pradesh Taxation Laws (Amendment and Validation) Act, 1978 (hereinafter in this section referred to as the said date), and the period of one hundred and twenty days for making the application as referred to in this sub-section, as it existed before the said date, had not expired on the said date the person aggrieved may apply for revision within sixty days from the said date. (2) Any person aggrieved by an order made by the revising authority or an additional revising authority refusing to state the case under this se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder sub-section (1) or subsection (3), as they stood immediately before the said date, and such authority has not made reference before the said date, it shall, as soon as may be, made reference to the High Court. Every such reference and every reference already made by such authority before the said date and pending before the High Court on the said date, shall be deemed to be an application for revision under this section and disposed of accordingly. *(7) Where an application under this section is pending, the High Court may, on an application in that behalf, stay recovery of any disputed amount of tax, fee or penalty payable, or refund of any amount due, under the order sought to be revised: Provided that no order for the stay of recovery of such disputed amount shall remain in force for more than thirty days unless the applicant furnishes adequate security to the satisfaction of the assessing authority concerned. (8) The High Court shall, after hearing the parties to the revision, decide the questions of law involved therein, and where as a result of such decision, the amount of tax, fee or penalty is required to be determined afresh, the High Court may send a copy of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt is to be sent to the Tribunal which shall "thereupon pass such orders as are necessary to dispose of the case in conformity with the said decision". That is to say, the matter is to be finally disposed of by the Tribunal in conformity with the decision of the High Court. In either case, therefore, the order which effectively disposes of the controversy is the one passed by the Tribunal, because under section 11, even as it stands today in order to bringing the controversy to a close, so far as it relates to the amount payable by a dealer, is the one passed by the Tribunal. The High Court revises the order passed by the Tribunal under section 11 by deciding the questions of law. The Commissioner of Sales Tax has been empowered to revise orders passed by any officer subordinate to him by section 10-B "for the purpose of satisfying himself as to the legality or propriety of such order" and he may "pass such order with respect thereto as he thinks fit". The order passed by the Commissioner under this provision has been made subject to appeal before the Tribunal under section 10(2) which provides that any person aggrieved by an order passed by the appellate authority under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1967] 19 STC 144 (SC); AIR 1967 SC 681 it was laid down that the doctrine of merger is not a doctrine of rigid and universal application, and it cannot be said that wherever there are two orders, one by the inferior authority and the other by the superior authority, passed in an appeal or revision, there is a fusion or merger of the two orders irrespective of the subject-matter of the appellate or the revisional order and the scope of the appeal or the revision contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or the revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. In Satish Chandra Nirmesh Kumar v. Additional Judge (Revisions), Sales Tax, U.P., Bareilly [1974] 34 STC 304 it was ruled by a Division Bench of this Court on 26th November, 1973, that an order passed by the revising authority did not merge in the one passed by the High Court under section 11(6) of the Act (as it then stood). The legal position remains the same in spite of the change brought about in section 11 by U.P. Acts Nos. 11 of 1978 and 12 of 1979. By these amendments, the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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