Judgment:
1. This is an application Under Section 8 of the West Bengal Taxation Tribunal Act, 1987 assailing the order dated January 30, 2001 passed by the West Bengal Commercial Taxes Appellate and Revisional Board (in short, "the Board") in case No. RN-44/85-86 for the period ending March 31, 1993.
2. The petitioners are manufacturers of carbon black which is used throughout India by the automobile tyre company. The dispute in course of assessment arose if the amount of turnover rebate allowed to the customers is to be deducted from the sale price, since it was nothing but a trade discount. The legal position ultimately was settled by the Tribunal holding that the said turnover rebate was a trade discount and should be allowed towards diminition of sale price. The said decision was followed for the assessment years 1978-79, 1979-80 to 1991-92 and 1993-94 to 1994-95 and the turnover rebate was allowed and deducted from the sale price.
3. The respondent No. 1 did not, however, allow the said rebate for the assessment period of 1976-77 and 1992-93 without any proper reason. The matter, therefore, ultimately came before the A Board and it was observed by the learned Members that the appellate authority did not assign proper reason for refusing the prayer for discount. Since the Board did not find any transparency in the appellate order, it was set aside. The cases were remanded back for reassessment in accordance with law.
4. It is, therefore, the contention of the learned lawyer for the petitioner that the Board acted illegally and improperly by sending the case on remand for reassessment. The Board should have followed the decision of the Tribunal and allowed the revisional applications filed by the petitioner without giving the opportunity to the assessing officer of holding any roving investigation. The order passed by the Board is, thus violative of the principles of judicial norms and procedures. The Board, therefore, may be directed to withdraw or rescind the impugned order passed by it.
5. Identical question of law arose in the application being No. RN-227 of 2001. Hence, it was also heard along with the application RN-226 of 2001.
6. The only point for consideration, therefore is, if the order of remand passed by the Board is proper, legal and justified.
7. The question whether the turnover rebate is to be allowed as trade discount has already been settled by the different judgments passed by this Tribunal.
8. It is undisputed that the petitioner enjoyed the rebate for different periods allowed by the assessing officer on similar facts and circumstances of the case relying on the decision of this Tribunal. In the present case, it came to the notice of the learned Members of the Board that the assessing officer in all cases where turnover rebate was allowed had made an indication in his order that such allowance was made on the findings of the identical facts, nature and character of the claim. Even then, we find that without disposing of the case on merits the learned Members simply set aside the appellate order and directed the appellate authority to explain as to why there had been a reversal in the approach for not allowing the trade rebate by the assessing as well as the appellate officer in the cases under dispute.
Since they found no transparency in the impugned appellate order. The order was set aside with the direction to reassess the cases in accordance with law.
9. Now, the question arises if such remand order is justified or not.
In a case (United Commercial Bank v.Commissioner of Income-tax, West Bengal, II.) the Tribunal simply set aside the order of the A.A.C. and remanded the matter to the A.A.C. for fresh disposal after making proper scrutiny into the facts and circumstances of the transaction, especially as the foreign exchange proceedings had since been decided and the documents were available.
10. On the reference their Lordships held, "The Tribunal has power to remand a case for a further investigation of facts but the power has to be exercised with proper discretion. It should not be exercised if all the basic facts necessary for the disposal of the matter are already on record and if these facts appear in the order of the I.T.O. and A.A.C.". In the present case also, all the basic facts necessary for disposal were found to be already on record. The learned Members of the Board, therefore, instead of sending the matter back on remand should have decided the revisional applications themselves on merits and arrived at a proper finding. In a case M.G. Shahani & Co., (Delhi) Ltd. v. Collector of Central Excise, New Delhi], the complaint was that the Tribunal did not consider the evidence and render findings though all the relevant materials were before the Tribunal. Their Lordships held, "The Tribunal has adopted an easy course of remanding the matter through collector when it could have decided the same." It was further held, "To our mind, it appears that the Tribunal has adopted an easy course to remanding the matter.
The remand was superfluous when the parties have argued the matter at length".
11. The aforesaid legal principles, also apply in our view, in the present case. The order of remand passed by the learned Members of the Board is, found to be unjustified and liable to be set aside. The learned Members should dispose of the cases on merits after considering all the relevant materials available on record.
12. The orders passed by the learned Members of the Board are hereby set aside.
13. RN-227 of 2001 is also disposed of in view of the findings made above.