TMI Blog1953 (9) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment orders pertaining to assessment years 1951-52 and 1952-53, the appellate order dated the 25th February, 1953, and the decision of the Sales Tax Officer contained in his post card, dated the 11th of August, 1953, and that a writ in the nature of manda- mus be issued to the opposite parties directing them to refund the amount of tax illegally imposed. The applicant No. 1 is a joint stock company and owns three factories. Its accounting year starts from 1st November and ends on 31st October. When the U.P. Sales Tax Act came into force on the 1st of April, 1948, applicant No. 1 became liable to sales tax. Section 7(1) of the U.P. Sales Tax Act of 1948 prescribes the submission of a return of a dealer's turnover of the previous yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year 1950-51 and applied to the Commissioner of Sales Tax for permission to change the basis of its assessment from previous year to that of assessment year. The Commissioner allowed its prayer on con- dition that if the tax due on a previous year's basis for the assessment year 1950-51 exceeded the tax on the basis of assessment year's sales the excess amount would be paid by the applicant company to the Govern- ment. The applicant made further representations to the Commissioner and to the Finance Secretary, Government of Uttar Pradesh, for the withdrawal of the condition imposed by the Commissioner. Those re- presentations were unsuccessful. It then submitted a return on the basis of the previous year for the assessment year 1950-51. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of a return on the basis of a turnover of the previous year but allowed an alternative, and it was that, in lieu of a return of the turnover for a previous year a return of the turnover of the assessment year could be submitted, if so prescribed by the State Government. This, to our mind, meant that it had to make a choice in the very first instance. The proviso does not say that the choice could be exercised at any subsequent stage. Rule 39, sub-rule (1), framed by the State Government provided that the election to submit returns of his turnover of the assessment year in lieu of the returns of the turnover of the previous year shall be signi- fied in the return filed by the dealer in Form IV. That form has a provi- sion for mentioning s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-rule (1) will also be invalid as the two sub-rules should be deemed to be inseparable, it being difficult to say that the State Government would have made sub-rule (1) in the absence of sub-rule (2). If sub-rule (1) of rule 39 goes away, the applicant will have no right to submit a return on the basis of its turnover of the assessment year. In this view of the matter too the applicant cannot be held to be aggrieved with the assessment on the basis of the previous year. Lastly, even if sub-rule (1) be valid and sub-rule (2) be ultra vires of the State Government, the order of the assessment officer to assess the applicant on the basis of its turnover for the previous year under Sec- tion 7, sub-section (3), of the Act cannot be said to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of the turnover of the assessment year was incorrect. He had jurisdiction to decide wrongly. His jurisdiction to assess under Section 7(3) is not dependent on certain conditions precedent but is dependent on his own finding whether a proper return had been submitted or not. He had jurisdiction to decide whether such a proper return had been submitted. It is not necessary to deal with the various cases referred to by the learned counsel for the applicant. Reference may be made to the case reported in Ebrahim Aboobaker v. Custodian General of Evacuee Pro- perty(1), which shows that a Tribunal can have under the statute jurisdic- tion to decide the existence of the preliminary facts on which the further exercise of jurisdiction depend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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