Judgment:
A.M. Sapre, J.
1. By filing this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the sales tax assessment order dated February 11, 1993 (annexure P10) for the period from August 1, 1989 to July 31, 1990.
2. At the outset, learned counsel for the petitioner submitted by producing the copy of one order dated July 31, 1998, passed by Board of Revenue in Appeal No. 256/PBR/91, that in view of order passed by the Board of Revenue in favour of petitioner, this petition has to be allowed and impugned order of assessment be set aside.
3. Perusal of order of Board of Revenue dated July 31, 1998, filed and relied on by the petitioner clearly indicates that it relates to period from August 1, 1984 to July 31, 1985. The facts of the case that led to filing of an appeal by the petitioner to Board of Revenue for the period in question (August 1, 1984 to July 31, 1985) need mention. An assessment order for the period from August 1, 1984 to July 31, 1985 was passed by the assessing officer on September 29, 1987 on the basis of the return filed by the petitioner. The Commissioner then on August 17, 1990 issued a show cause invoking its suo motu revisional powers under Section 39(1) and called upon the assessee as to why the order of assessment dated September 29, 1987 be not set aside as according to Commissioner it was prejudicial to the interest of revenue. The petitioner contested the matter by filing a reply and urged that no case for revoking the original assessment order (September 29, 1987) is made out and hence invocation of suo motu power by the Commissioner is bad. The Commissioner by its order dated July 30, 1991, set aside the original assessment order (September 29, 1987) and remanded the case to assessing officer for making fresh reassessment under Section 18(7) of the Act in respect of period (August 1, 1984 to July 31, 1985). It is against this order of Commissioner setting aside the order of original assessment and remanding the case for fresh reassessment, the petitioner filed appeal to the Board of Revenue. The Board of Revenue by its order dated July 31, 1998 allowed the appeal and set aside the order of Commissioner. While allowing the appeal, this is what the learned Member of Board of Revenue in para 6 held :
'Para 6--After hearing counsel for both sides and seeing the record, I find no material on record to show that the sales to the sole distributor were made at an abnormally low prices.'
4. In effect the question that arose in the aforesaid litigation which eventually was decided by the Board of Revenue in favour of petitioner was, whether sales effected by the petitioner to their sole distributor (Blow Plast) during the period from August 1, 1984 to July 31, 1985 were made at an abnormally low prices so as to treat the transaction to be in the nature of a sale to a favoured buyer. It was held by the Board of Revenue that in the absence of any material on record to show that these sales can be regarded as sales to any favoured buyer the order of Commissioner was set aside. As a result, the original assessment for the said period (August 1, 1984 to July 31, 1985) was restored and held to be legal.
5. I am unable to accept that the aforesaid order of Board of Revenue which arise out of the assessment period 1984-85 can be relied on to set aside the impugned assessment order which is for the period from August 1, 1989 to July 31, 1990. Merely because in one year the particular sales effected by the petitioner (may be with same buyer) were held to be good for want of adequate material against the petitioner cannot by itself a ground to uphold all the sales even effected in subsequent years to be good. The question whether sales effected in particular year of assessment is good or bad depends upon the facts relating to that particular sale and secondly it depends upon the material brought on record by the assessee to support the sales. It being a settled principle of law that every assessment year is separate and distinct having no connection with the earlier one or subsequent one equally applies to the fact of this case also.
6. In view of aforesaid discussion, I find absolutely no merit in the submission of learned counsel for the petitioner that the impugned assessment which is made subject-matter of this writ petition be quashed solely relying upon the decision of Board of Revenue rendered for the period from August 1, 1984 to July 31 1985.
7. As observed supra, in the present petition, the challenge is directly to an order of assessment dated February 11, 1993 (annexure P10) which relates to the period from August 1, 1989 to July 31, 1990. In this case, neither there was any exercise of any suo motu revisional powers by the Commissioner under Section 39(1) of the Act nor a direction for reassessment under Section 18(7). In other words, no sooner the assessment order was passed by the assessing officer on February 11, 1993, the petitioner instead of filing a regular appeal or revision as the case may be under the Act, filed this writ under Articles 226 and 227 of the Constitution of India.
8. In my opinion, the challenge to impugned assessment order which is essentially based on factual submission is entirely misplaced and beyond the powers of this Court in exercise of extraordinary powers under Articles 226 and 227 of the Constitution. This Court is not an appellate court to examine the correctness of the factual finding recorded by the assessing officer when it held that particular sales effected by the petitioner during the period in question (August 1, 1989 to July 31, 1990) in favour of one company Blow Plast can be regarded as favoured sales or genuine sales. This exercise could be done only by the appellate authority under the Act but not by this Court.
9. Perusal of petition and the grounds taken therein do not make out any case for quashment of assessment order. A plea of Article 14 in para 7 of the petition has absolutely no basis. The impugned order of assessment cannot be set aside on the plea of Article 14.
10. As observed supra during argument, the challenge was only on the ground of order passed by the Board of Revenue which has been negatived by this Court.
11. Accordingly and in view of the discussion aforesaid, the petition has no merit. It is dismissed.
No costs. Security amount, if deposited by the petitioner, be refunded as per rules.