TMI Blog1974 (12) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... medy of revision under section 10 against similar appellate orders in previous years. There was no justification for the petitioner in not going in revision especially when he had several revisional orders in his favour. In so far as this year is concerned, the present writ petition is liable to fail on the ground that the petitioner had an adequate alternative remedy for the non-exercise of which he has not given adequate reasons, For the subsequent assessment years, that is, 1971-72 and 1972-73, the Sales Tax Officer accepted the petitioner's contention that the turnover of photographs was exempt from tax, but he rejected the account books of the petitioner in regard to the turnover of photo goods and estimated them for each of the two years. The petitioner felt aggrieved and challenged this finding in appeals filed by him in respect of the two years. It appears that at the hearing of the appeal the departmental representative argued before the Appellate Assistant Commissioner that the turnover of photographs was liable to tax and had been wrongly exempted. Thereupon the Appellate Assistant Commissioner issued a notice to the petitioner stating that the departmental representat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the return of his turnover, the assessing authority determines the turnover and assesses the tax on it. Thus the tax liability of a dealer is dependent upon his turnover of sales or purchases. Section 2, clause (i), defines the "turnover" to mean the aggregate amount for which the goods are supplied or sold by a dealer either directly or through another. Similarly, the turnover of purchases is also defined to mean the aggregate of the amounts of purchase price paid or payable by a dealer in respect of purchase of goods made by or through him. It was urged that the tax liability of an assessee is dependent upon the determination of the turnover as such and, therefore, an assessment order which determines the turnover and fixes the tax liability is capable of being, inter alia, enhanced by the appellate authority under sub-section (3) of section 9 in respect of both matters. The appellate authority, hence, had jurisdiction to consider the question of taxability of the turnover of photographs even though the same had been held exempt from tax by the assessing authority. Section 3 of the U.P. Sales Tax Act is the charging section. It provides that, subject to the provisions of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnover of each such commodity in which the dealer happens to do business and after determining the turnover of each commodity the assessing authority has to find the rate and calculate the tax liability of turnover of each variety independently and separately. After this has been done the assessing authority has to total up the items of tax liability; the total represents the tax liability of the dealer for the particular assessment year. The Sales Tax Rules do not lead to any different conclusion. Rule 41(5) authorises the Sales Tax Officer to determine the turnover of the assessment year and assess the tax thereon. Rule 44 provides for deductions from turnover. Clause (a) deals with all amounts allowed as discount in accordance with the regular practice of the dealer. Such discounts may be permissible in respect of a particular commodity and not another. This also shows that the assessing authority has to determine the turnover with reference to each taxable commodity separately. So even though the definition clause defines the turnover to mean the aggregate amount for which the goods supplied or sold, yet it does not mean that the turnover has to be the grand total of the agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is further clear by the provisions of section 10, which entitles the Commissioner of Sales Tax to apply to the revising authority against any order made by the assessing or appellate authority. Further, the revising authority has been conferred suo motu powers to call for and examine the relevant record and cancel, confirm or vary any order passed either by the assessing authority or by the appellate authority. The fact that the Commissioner of Sales Tax has not been given any right of appeal but has been given a right of revision must be borne in mind while construing the ambit of the appellate jurisdiction given by section 9. In the context the appellate jurisdiction cannot usurp the revisional jurisdiction under section 10. Else the position would be that an assessment order or a portion of it against which the Commissioner is aggrieved would be liable to challenge not only before the revising authority under section 10 but also before the appellate authority under section 9 and different results may be reached by these authorities. That would cause confusion. Reading the appellate jurisdiction in the manner in which the learned standing counsel suggests would indirectly nu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
