Chhota Bhai Jetha Bhai Patel and Company vs Commissioner of Sales Tax

K.M. Agarwal, J.—This order shall also dispose of M.C.C. No. 193 of 1983.

These are applications u/s 44(2) of the M.P. General Sales Tax Act, 1958 (in short, "the State Act") for requiring the Tribunal to state the case and refer it to this Court for its opinion.

The applicant, Chhota Bhai Jetha Bhai Patel and Company, Rajnandgaon, was a registered dealer for the purposes of the State Act and the Central Sales Tax Act, 1956 (in short, "the Central Act"). For its assessment period 5th November, 1964 to 24th October, 1965, assessment orders under the State Act and the Central Act were made on 15th November, 1966, by the Sales Tax Officer, Rajnandgaon. The Additional Commissioner of Sales Tax set aside the assessment orders passed by the Sales Tax Officer and remanded the cases for fresh assessment in exercise of his suo motu powers u/s 39(2) of the State Act. After the remand, the fresh assessments were made by the Assistant Commissioner of Sales Tax, because the assessee''s turnover exceeded Rs. 30,00,000, which was beyond the pecuniary jurisdiction of the Sales Tax Officer. The fresh assessment orders were challenged by filing appeals before the Deputy Commissioner of Sales Tax, questioning the jurisdiction of the Assistant Commissioner of Sales Tax to make the fresh assessments. The objection as to jurisdiction was overruled and the appeals to that extent were dismissed. On further appeals being filed by the assessee, the Tribunal quashed the orders of fresh assessment passed by the Assistant Commissioner, as also the appellate orders of the Deputy Commissioner of Sales Tax by its common order dated 24th February, 1981 and sent back the cases to the Additional Commissioner of Sales Tax with a direction to pass final orders in revision u/s 39(2) of the State Act in accordance with law, by following the decision of this Court in Kochar and Co. v. Sales Tax Officer [1971] 28 STC 473. Being aggrieved, the assessee filed applications u/s 44(1) of the State Act for making a reference. The applications were rejected by the Tribunal by its common order dated 25th March, 1983, on the ground that the Tribunal''s order was not shown to be illegal, justifying a reference u/s 44 of the Act. Being aggrieved, the assessee has filed these applications u/s 44(2) of the State Act for requiring the Tribunal to make a reference.

Having heard the learned counsel for the parties, we have come to the conclusion that in the context of the aforesaid facts the following common question of law does arise in the two cases decided by the Tribunal by its common order dated 24th February, 1981 :

"Whether, in the facts and circumstances of the case, the Tribunal was right in directing the Additional Commissioner of Sales Tax to pass final order u/s 39(2) of the State Act ?"

Accordingly both the applications u/s 44(2) of the State Act are allowed and the Tribunal is directed to state the case and to refer the aforesaid common question of law to this Court for its decision. In the circumstances of the case, we make no order as to costs of these cases.