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1994 Supreme(Mad) 987
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE THANIKKACHALAM & THE HONOURABLE MR. JUSTICE SHANMUGAM
State of Tamil Nadu - Appellant
Versus
National Fastners Private Limited - Respondents
Tax Case No. 19 of 1987 (Revision No. 18 of 1987)
Decided On : 24 November 1994
When a first appellate authority remits back an assessment only on specific aspects, it cannot be said that the entire assessment was set aside and remitted back for fresh assessment. When the assessment is completed in accordance with the appellate order only on particular points, it is not open to the assessee to agitate any other point, before the assessing officer which were not remanded.
Headnote:
TAMIL NADU GENERAL SALES TAX ACT, 1959 - SECTION 12, 16 - REMAND ORDER - SCOPE - ASSESSING AUTHORITY CANNOT GO BEYOND THE DIRECTIONS GIVEN BY THE APPELLATE AUTHORITY - ASSESSEE CANNOT AGITATE ANY OTHER POINT, BEFORE THE ASSESSING OFFICER WHICH WERE NOT REMANDED - WHEN THE ASSESSEE IS NOT AGGRIEVED BY THE CONSEQUENTIAL ORDER, THE ASSESSEE CANNOT FILE AN APPEAL AGAINST SUCH AN ORDER AND AGITATE GROUNDS WHICH WERE NOT TAKEN IN THE PRIOR PROCEEDINGS.
Fact of the Case:
The assessee, Tvl. National Fastners (P) Ltd., was assessed for the assessment year 1978-79 by the Deputy Commercial Tax Officer on April 13, 1982. The assessee appealed the assessment before the Appellate Assistant Commissioner (AAC), who remanded the case to the assessing officer for reconsideration of two specific items: (1) rectification of defects in 7 "C" forms; and (2) correction of a wrong classification of Rs. 5,000 under the 10% tax category. The assessing officer complied with the AAC's directions and passed a consequential order on July 31, 1984. The assessee appealed the consequential order to the AAC, who dismissed the appeal. The assessee then appealed to the Appellate Tribunal, which remanded the disputed turnover to the AAC for fresh disposal.
Finding of the Court:
The court held that the Tribunal erred in remanding the disputed turnover to the AAC because the assessee was not aggrieved by the consequential order passed by the assessing officer on July 31, 1984. The court found that the assessee had not raised any disputes in the appeal against the consequential order that had not been raised in the prior proceedings. Therefore, the court held that the assessee could not file an appeal against the consequential order and agitate grounds that were not taken in the prior proceedings.
Issues: 1. Whether the assessing authority can go beyond the directions given by the appellate authority in passing a consequential order pursuant to a remand order? 2. Whether the assessee can agitate any other point, before the assessing officer which were not remanded? 3. Whether the assessee can file an appeal against a consequential order and agitate grounds which were not taken in the prior proceedings?
Ratio Decidendi: 1. The assessing authority cannot go beyond the directions given by the appellate authority in passing a consequential order pursuant to a remand order. 2. The assessee cannot agitate any other point, before the assessing officer which were not remanded. 3. The assessee cannot file an appeal against a consequential order and agitate grounds which were not taken in the prior proceedings.
Final Decision: The court set aside the order of the Tribunal and restored the order of the AAC dated October 29, 1984. The court also allowed the revision filed by the State.
THANIKKACHALAM, J.
The State is the petitioner. Tvl. National Fastners (P) Ltd. is the assessee. The assessment for the assessment year 1978-79 was completed by the Deputy Commercial Tax Officer on April 13, 1982. As against the said order, the assessee preferred an appeal before the Appellate Assistant Commissioner (AAC). The AAC, after hearing learned counsel appearing for the assessee and the department, ultimately held that
"in view of the decision of the High Court of Madras in the case of Chellaram Garments (P) Ltd. and in the interest of justice, I feel that this is a fit case for remanding back the disputed turnover of Rs. 4, 28, 332.24 to the assessing officer for fresh disposal and to extend the concessional rate of tax if the defects have been found rectified and other forms are in order. He has also brought to my notice that the assessing officer has wrongly compiled the figures while fixing the final assessment orders by adding Rs. 5, 000 assessable at 4 per cent. I am remitting this portion also to the assessing officer for fresh consideration and to rectify the error, if any, as pointed out by the appellants"
Thereafter, the assessing officer passed a consequential order in pursuance of the directions given by the AAC in his order dated May 7, 1983.
2. According to the assessing officer the AAC in his proceedings remanded the case on the following points :
(i) to consider the rectification of defects in 7 "C" forms by filing the rectified duplicate copy of "C" forms.
(ii) to consider the wrong classification of Rs. 5, 000 under 10 per cent category in annexure A.
According to the assessing officer 7 Nos. of duplicate C forms have been examined and found that the defects pointed out earlier were rectified. The "C" forms covered a taxable turnover of Rs. 4, 29, 963. This will now be taxed at 4 per cent instead of 10 per cent already assessed. According to the assessing officer, there was a totalling error in annexure A thereby a turnover of Rs. 5, 000 was assessed to tax at 10 per cent in excess. This will now be deducted from 10 per cent category and added to 4 per cent. Further, the assessing officer rectified the mistake and the turnover of Rs. 12, 589.50 was taxed at 10 per cent. Accordingly, the consequential order was passed revising the assessment for the assessment year 1978-79 as under :13% 10% 4%
Turnover already assessed 5, 17, 961 58, 802 21, 29, 782
Add and deduct as detailed under paras 3, 4 and 5. (-) 4, 29, 963 (-) 5, 000 (+) 4, 29, 963
(-) 12, 590 (+) 12, 590 (+) 5, 000
Taxable turnover determined 75, 408 66, 392 25, 64, 745
Aggrieved by the consequential order passed by the assessing officer dated July 31, 1984, the assessees preferred an appeal before the AAC. On appeal, the AAC held that the assessing officer completed his assessment proceedings only in accordance with the directions given in the appellate order in CST 182/82 dated May 7, 1983. The AAC pointed out that there is no dispute whatsoever in regard to the order issued by the assessing officer that it was not in accordance with the directions in the appellate order. The AAC also held that so long as there is no error in that regard the appellant cannot have any grievance. According to the AAC the appellants have chosen to file an appeal disputing the turnover already originally assessed in the original assessment. The AAC further pointed out that in the instant case, it is not a revision under section 16, but it is a proceeding made by the assessing officer with reference to the directions given by the appellate authority. Accordingly the app eal filed by the assessee was dismissed.
3. As against the said order, the assessee went to appeal before the Appellate Tribunal. The Tribunal on perusing the records came to the conclusion that the AAC in his order dated May 7, 1983, remanded the appeal to the assessing officer not for any specific turnover. Accordingly the Tribunal held,
"we remand the disputed turnover alone to the AAC. We als
