Andhra HC (Pre-Telangana)
Mcdowell And Company Limited vs Commercial Tax Officer, Nacharam ... on 14 March, 1996
Equivalent citations: [1996]103STC548(AP)
JUDGMENT S. Parvatha Rao, J.
1. In these three writ petitions the petitioner - M/s. McDowell and Company Limited, questions the final annual assessment orders in G.I. Nos. 27/78-79(CST), 27/79-80 (CST) and 27/80-81 (CST) dated August 21, 1995 of Commercial Tax Officer for the assessment years 1978-79, 1979-80 and 1980-81 under the Central Sales Tax Act. These assessments are said to have been made pursuant to the directions of the Sales Tax Appellate Tribunal in its order in T.A. Nos. 672, 673 and 674 of 1987 dated January 31, 1990 as modified by this Court by an order dated December 7, 1994 in T.R.C. Nos. 260, 263 and 264 of 1990 and W.P. Nos. 16685, 16686 and 16687 of 1994. The petitioner contends that the said order of this Court dated December 7, 1994 was not complied with in making the impugned assessment orders. The petitioner submits that though in respect of the transactions in question the Tribunal in its order dated January 31, 1990 required the assessing authority to inquire as to whether they are inter-State sales or intra-State sales, this Court in its order dated December 7, 1994 set aside that direction observing that the learned Government Pleader himself fairly conceded that the said direction could not be supported in view of the fact that both the Revenue as well as the petitioner-assessee proceeded on the premise that the transactions in question were inter-State sales as the sales occasioned the movement of the goods from the State of Andhra Pradesh to the State of Bombay or Madras, as the case may be and therefore it was not open to the Tribunal to direct the assessing authority to consider whether the transactions amounted to intra-State sales. In spite of this Court setting aside that direction of the Tribunal, the respondent herein in the impugned assessment orders proceeded to consider the said question. When confronted with this position, the learned Special Government Pleader for Taxes accepts that the respondent acted contrary to the order of this Court.
2. Though the respondent tried to justify his action in his counter-affidavit dated October 26, 1995, in his additional counter-affidavit dated November 7, 1995 he seeks to explain himself as follows :
".......... the honourable Tribunal directed me to consider two questions, the nature of transactions and the quantum of turnover. When these questions were considered, both sides had conceded before this honourable Court that these transactions were only inter-State sales and not intra-State sales. Upon this, this honourable Court set aside the first direction of the Tribunal. I understood this to mean that I was to go through the nature of inter-State sales again. Upon this understanding and on the basis of the show cause notice issued earlier, I had passed assessment orders."
3. We find that there is absolutely no warrant whatsoever for the said understanding of the respondent. In the first place, the order of the Tribunal dated January 31, 1990 is clear and unambiguous in this regard. It categorically states that the revised assessment order dated March 28, 1984 and Appellate Deputy Commissioner's order dated October 28, 1985 were set aside and that the matters were remanded to the Commercial Tax Officer "to decide only the following question and then make final assessment in regard to these turnovers". One of the questions was as to whether the transactions were inter-State sales. It was in respect of this question that this Court in its order dated December 7, 1994 set aside the direction given by the Sales Tax Appellate Tribunal. The only other question that was remanded for the consideration of the Commercial Tax Officer is that which was upheld by this Court in its order dated December 7, 1994. No other question was remanded to the Commercial Tax Officer for his consideration. From a reading of the order of the Tribunal we find that the question which was considered by the Commercial Tax Officer in the impugned assessment orders was already concluded by the earlier orders of the appellate authority dated July 14, 1983. In paragraph 6 of the order the Tribunal held as follows :
"In this case the appellate authority by his orders dated July 14, 1983 has clearly held that the sale is between the appellants and M/s. Herbertsons Limited of Bombay and not between the appellants and the Madras parties, and held that there is no privity of contract between appellant and Madras parties and no amount also has been received from the Madras parties by the appellants. Therefore, the assessing authority after remand had no authority to go into that issue again. The conclusions arrived at by the assessing authority after remand on that issue are beyond the scope of remand and without jurisdiction and therefore the confirmation of the said orders by the first appellate authority is also illegal and therefore the said findings have to be set aside, and the findings of the first appellate authority in the first instance, i.e., on July 14, 1983 which have become final have to be upheld between the parties."
4. We fail to see how the respondent could have missed this. In fact, the order of this Court dated December 7, 1994 is very specific about the matters in respect of which show cause notice should be given by the respondent. This Court directed the Commercial Tax Officer, Nacharam, Hyderabad, as follows :
"The Commercial Tax Officer - respondent No. 2 is directed to issue show cause notice to the petitioner giving a period of two weeks from the date of service of notice to file their explanation with regard to the discrepancies in the amount and also objections as to why the excise duty paid by Bombay party should not be included in the taxable turnover."
5. It is surprising that respondent missed this emphatic direction also.
6. It is unfortunate that this matter is being dragged on for more than a decade after the first remand was made by the orders of the appellate authority dated July 14, 1983 because of the intransigent attitude of the Commercial Tax Officer like the respondent in this case. In the circumstances, the writ petitions are allowed with costs and the impugned assessment orders are set aside. It will be open to the respondent to reconsider the matter as per the order of this Court dated December 7, 1994 by issuing fresh show cause notice to the petitioner giving a period of two weeks from the date of service of notice to file its explanation with regard to the discrepancies in the amount and also objections as to why the excise duty paid by Bombay party should not be included in the taxable turnover. If the explanation is filed within the said period of two weeks, we direct the Commercial Tax Officer to consider the same and pass appropriate orders of fresh assessment in accordance with the conclusions arrived at.
7. The respondent is directed to pay a sum of Rs. 1,000 towards costs in each of these three writ petitions.
8. Writ petitions allowed.