TMI Blog1968 (5) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional Assistant Commissioner (Judicial) Sales Tax, and by his order dated 19th July, 1966, he dismissed the appeal as incompetent. The petitioner applied in revision under section 10 of the Act to the Judge (Revisions) Sales Tax, but the revision application has been dismissed by his order dated 3rd February, 1968. The petitioner now prays for certiorari against the order of the Additional Assistant Commissioner (Judicial) and of the Judge (Revisions). In support of the objection that the appeal was incompetent because the entire amount of admitted tax had not been deposited by the petitioner, it was pointed out before the Additional Assistant Commissioner (Judicial) that the turnover disclosed by the petitioner in its return and admitted by it during the assessment proceedings was Rs. 1,11,844.02 and not Rs. 85,000 now shown in the memorandum of appeal. It was contended that the turnover disclosed in the return represented the basis for computing the admitted tax liability. The petitioner urged in reply that the turnover of imported single point taxable goods was less than Rs. 85,000 and that the figure of Rs. 1,11,844.02 was entered in the return because some of the goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nover at such intervals, within such period, in such form and verified in such manner, as may be prescribed; but the assessing authority may in its discretion, for reasons to be recorded, extend the date for the submission of the return by any person or class of persons. (1-A) Before submitting the return under sub-section (1) or along with such return the dealer shall deposit in such manner as may be prescribed, the amount of tax due on the turnover shown in such return." Rule 41(1) of the U.P. Sales Tax Rules provides that a dealer liable to pay tax under the Act must submit to the Sales Tax Officer a return of his gross turnover for the quarters ending June 30, September 30, December 31 and March 31 in Form IV. Rule 41(2) requires: "Before submitting the return under sub-rule (1), the dealer shall deposit in the Treasury the amount of tax calculated by him on the turnover shown in such return and shall submit the Treasury chalan with the return or submit with the return a cheque for the amount so calculated." Form IV is the statutory form of the return of turnover. Head No. 7 of the Form provides for particulars of the turnover. Entry No. I of that head relates to the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that while section 7(1-A) requires a dealer to deposit the tax "due on the turnover shown in such return" the proviso to section 9(1) requires the deposit of the tax "admitted by the appellant to be due." The principal distinction between the two requirements is marked by the purpose for which they have been enacted. Under section 7(1-A) the amount of tax required to be deposited is with reference to the return filed by the dealer. What is stated in the return constitutes his admission at that stage in regard to the taxable turnover and in regard to the rate of tax attracted thereto. Inasmuch as the Act is a fiscal statute, a duty has been laid upon the dealer to deposit the amount of tax which according to his return he concedes is due from him. The assessing authority may, however, find that the true taxable turnover is an amount in excess of the turnover disclosed by the dealer in the return or that the rate applicable to the turnover is greater than that conceded by the dealer. The assessing authority will, therefore, make an assessment order assessing the dealer to tax on the higher turnover or at the higher rate. The dealer may not accept the findings contained in the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uccessive stages the tax successively admitted by him. Now it may also happen that the dealer may have erroneously entered a turnover in the return which in law is not taxable or concede a rate in the return which is in excess of the true rate. He may do so under a mistaken impression of the law, and consequently concede a higher tax liability than is really due. In the appeal against the assessment order, he may take the position that the true turnover is in reality less than the turnover returned by him or that the rate truly attracted is lower than the rate entered by him in the return. We see no reason why in the appeal against the assessment order he should not be entitled to question the taxable turnover and the rate shown by him in the return if what has been entered in the return is erroneous and due to a mistake of law. In that event, the amount of tax admitted by the appellant to be due when filing the appeal would be an amount less than that conceded by him on the basis of the return. Now, if the dealer has complied with section 7(1-A) and rule 41(2) he will have paid the tax on the basis of the return and no question arises of any further deposit of tax when he files ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the admitted tax liability for the purpose of the proviso to section 9(1) of the Act, regard should be had to the position taken by the appealing assessee in the memorandum of appeal. The appellate authority should not be guided in the matter by what has been stated in the return filed by the assessee. The appellate authority should examine the memorandum of appeal and determine, by reference to the grounds set out in the memorandum and the relief sought in it, what is the turnover and the rate of tax admitted and not disputed by the assessee at the stage of filing the appeal. Having ascertained that, the appellate authority will then proceed to determine the admitted tax liability. In the instant case, inasmuch as the Additional Assistant Commissioner (Judicial) proceeded on the basis of the statements made in the return filed by the petitioner, he misdirected himself in law. The respondents point out that the petitioner had stated during the hearing of the revision application before the Judge (Revisions) that the turnover was Rs. 1,11,844.02 and that it had mistakenly entered the turnover as Rs. 85,000 in the memorandum of appeal. We are concerned here with the position obta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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