TMI Blog1986 (9) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... o express our opinion on the merits, we confine ourselves to the facts notes for discussion to decide about the interpretation of section 35 of the Sales Tax Act. The petitioner is a registered dealer under the U.P. Sales Tax Act, having been granted a provisional registration under section 8-B of the Act with effect from 20th June, 1981. It was also granted a recognition certificate as a manufacturer to make purchases of raw materials. For the assessment year 1981-82, the petitioner filed return. While the proceedings of the aforesaid assessment year were pending, the petitioner moved an application before the Commissioner, Sales Tax, under section 35 of the Act on 20th August, 1982i claiming decision from the Commissioner that the trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Commissioner, Sales Tax, holding that after purification there was no liability of tax, had become final, hence proceedings in respect of the aforesaid three assessment years were liable to be decided in favour of the petitioner, and as the Sales Tax Officer made some observations which created an apprehension that the order of the Commissioner will not be accepted, the petitioner was compelled to file the present writ petition. The relevant portion of section 35 of the U.P. Sales Tax Act is reproduced below: "If any question arises, otherwise than in a proceeding pending before a court or before an assessing authority under section 7 or section 21, whether, for the purposes of this Act.......................................... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undone. For the purposes of interpreting section 35, it is necessary to understand the nature of jurisdiction which the Sales Tax Officer and the Commissioner exercise while dealing with the question which comes before them. The Sales Tax Act has made a clear distinction between judicial proceedings which have to be conducted and concluded in accordance with sections 7, 9, 10, 10-B, 21 and 35. The proceedings from sections 7 to 10-B are of a different character, having different content than the one contemplated by section 35. This is clear from the opening portion of section 35 itself. It provides "otherwise than". It advisedly excludes a proceeding pending before a court or before an assessing authority under section 7 or section 21. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the sanctity of the judicial proceedings under the Act. Giving of any other interpretation and holding that section 35 also falls in the same category would be acting against the clear terms of the statute, apart from the intention behind, section 35. Section 9(7) of the U.P. Sales Tax Act states that the appellate authority shall be under the superintendence and control of the Commissioner of Sales Tax. However, the proviso is significant. It states that: "In the exercise of such superintendence and control, no orders, instructions or directions shall be given by the Commissioner of Sales Tax so as to interfere with the discretion of the appellate authority in the exercise of its appellate functions. " Sub-section (7) of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic and elementary postulate of the rule of law, that in exercising their authority and in discharging their quasi-judicial function, the Tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. It is of the essence of fair and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State." So much argument on finality has been made by the petitioner that leads one to think that in case the Commissioner of Sales Tax under section 35 of the Sales Tax Act would have decided the controversy against the petitioner or the assessee, the assessee would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and future assessment years. For this submission, the learned Additional Chief Standing Counsel laid emphasis on the word "pending" in subsection (1) of section 35. It does appear that in a pending case the Commissioner, Sales Tax, has no power to give any order under section 35. For this proposition, reliance was placed on Bhavana Chemicals v. Commissioner, Sales Tax 1978 UPTC 420. This decision has been attempted to be distinguished by the petitioner's learned counsel on the ground that the question as to whether an order passed by the Commissioner after the return had been filed or a notice for assessment had been issued would be without jurisdiction, was not involved in that case. We do not consider it necessary to pursue this matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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