1. Questioning the orders of the Madhya Pradesh sales tax authorities treating the alleged stock transfers to the branches in other States as inter State sales and levying Central sales tax thereon for the assessment years 1986-87 to 1990-91, appeals were filed before this authority on August 8, 2005. Before filing these appeals, the assessment orders passed under the Central Sales Tax Act, 1956 were questioned by filing revision petitions. The revisional authority, namely, the Additional Commissioner of Commercial Taxes, rejected the petitions and declined to interfere with the assessments made. After that, the applicant filed a writ petition in the Supreme Court of India under Article 32 of the Constitution impleading various other States in which the stock transferred goods were treated as local sales and tax collected thereon. The Supreme Court disposed of the writ petition on February 4, 2004 by passing the following order:Ashok Leyland Ltd. v. State of Tamil Nadu and therefore, they are disposed of in terms of the said decision. The appellants/petitioners may approach the appropriate forum within a period of six weeks. In case such a petition is filed, it will be entertained and decided on merits. The appellant/petitioners may apply afresh for interim order before the appropriate forum.
2. The appellant then filed writ petitions in the High Court of Madhya Pradesh (Indore Bench) questioning the Central sales tax assessments and the orders passed in revision. It appears that the said writ petitions are pending.
3. The Central Government by its notification dated March 17, 2005 brought into force the provisions of Chapter VI of the Central Sales Tax Act, 1956 which bears the heading "Authority to settle disputes in course of inter-State trade or commerce". It may be mentioned that Chapter VI Containing Sections 19 to 26) was inserted by Act 41 of 2001, and it remained dormant till the notification was issued by the Central Government on March 17, 2005. The Authority for Advance Rulings under the Income-tax Act, 1961 has been constituted as the Central Sales Tax Appellate Authority to deal with the inter-State disputes arising out of the assessments made in more than one State. In view of this legislative development, the appellant chose to prefer appeals to this authority on August 8, 2005. Section 20(1) of the CST Act provides for appeals. The provision as it stood originally, i.e., at the time when the applicant filed appeals was as follows: 20. Appeals. - (1) The provisions of this Chapter shall apply to appeals filed by the aggrieved dealer against any order of the assessing authority made under Section 6A read with Section 9 of this Act, which relates to any dispute concerning the sale of goods effected in the course of inter-State trade or commerce, (emphasis1 supplied).
4. Certain provisions of Chapter VI were amended by the CST (Amendment) Act, 2005 (Act 3 of 2006). The amendments came into force with effect from March 1, 2006. Relevant part of Section 20 as amended reads as follows: Appeals. - (1) The provisions of this Chapter shall apply to appeals filed by any aggrieved person against any order of the highest appellate authority of a State, made under Section 6A read with Section 9.
Explanation. - For the purposes of this section and Sections 21, 22 and 25 'highest appellate authority of a State means any authority or Tribunal or court (except the High Court) established or constituted under the general sales tax law of a State, by whatever name called.
(2) Notwithstanding anything contained in the general sales tax law of a State, the authority shall adjudicate an appeal filed under Sub-section (1).
5. Thus, the orders passed by the assessing authority under the CST Act relatable to determination made under Section 6A read with Section 9 of the said Act cannot be directly questioned now before this authority, i.e., Central Sales Tax Appellate Authority (hereafter referred to as, "the CSTAA"). Now, an appeal lies only against the order of the highest appellate authority of State as defined in the Explanation to Section 6. Another crucial provision which has been amended is Section 25. The amended section is extracted hereunder: 25. Transfer of pending proceedings. - (1) On and from the commencement of the Central Sales Tax (Amendment) Act, 2005, all appeals (except appeals against orders of the highest appellate authority of the State) pending before the authority notified under Sub-section (1) of Section 24 shall stand transferred together with the records thereof to the highest appellate authority of the concerned State.
(2) Such highest appellate authority of the State to which such appeal has been transferred under Sub-section (1) on receipt of such records shall proceed to deal with such appeal so far as may be in the same manner as in the case of an appeal filed before such highest appellate authority of the State according to the general sales tax law of the appropriate State, from the stage which was reached before such transfer or from any earlier stage or de novo as such highest appellate authority of the State may deem fit: Provided that where the highest appellate authority finds that the appellant has not availed of the opportunity of filing first appeal before the appellate authority, such case shall be forwarded to such authority.
7. Thus, under the amended Section 25, the appeals pending before this authority excepting those preferred against the orders of the highest appellate authority of the State stand transferred to the highest appellate authority of the concerned State. Such highest appellate authority shall further deal with the appeal as if it were an appeal filed before it under the local sales tax law of the concerned State.
However, if an opportunity of filing a first appeal against assessment was not availed of, the highest appellate authority of the State is required to forward the appeal to the first appellate authority.
8. Considering the fact that the appeals filed by the applicant and others before this authority were not directed against the order passed by the highest appellate authority of the State, this authority transmitted a batch of appeals along with records to the highest appellate authority of the State of Madhya Pradesh which is the "Tribunal". The order dated March 2, 2006 reads as follows: By virtue of Section 25 of the Act [substituted by Section 7 of the Central Sales Tax (Amendment) Act, 2005], all appeals (except appeals against orders of the highest appellate authority of the State) pending before the authority, shall stand transferred together with the records thereof to the highest appellate authority of the concerned State with effect from March 1, 2006.
As the appeals before this authority, specified hereunder, are not from the orders of the highest appellate authority of the State, they stood transferred to the highest appellate authority of the State. It is, therefore, ordered that the appeals along with the records be transmitted to the highest appellate authority of the State noted in column 4 of the statement, in view of the provisions of Section 25 of the Act." (Annexure omitted) 9. The appeals filed by the appellant against the orders of Assistant Commissioner (CT), Indore are among those transferred.
10. No notice was issued to the parties before passing the above order probably for the reason that the authority was only giving effect to the statutory mandate.
11. Contending that the appeal against the revisional order passed by the Commissioner under Section 62(1) of the M.P. Commercial Taxes Act, 1994 does not lie to the Tribunal (which is the highest appellate authority of the State) and in fact, such an appeal is barred under the proviso to Sub-section (2) of Section 61, the present application for recalling the order passed by this authority on March 2, 2006 has been filed. It may be stated that this application for recalling the earlier order of transfer is confined to the assessment years 1986-87, 1989-90 and 1990-91 only.
12. To resolve the issue, it is necessary to advert to the scheme of the Madhya Pradesh Commercial Tax Act (Madhya Pradesh Vanijyik Kar Adhiniyam), 1994 relating to appeals and revisions. Sections 61 and 62 are the relevant sections.
13. Any dealer or person aggrieved by an order of assessment or reassessment with or without penalty has a right of first appeal to the Appellate Deputy Commissioner of Commercial Taxes [vide Section 61(1)].
Against the order passed by the first appellate authority, the assessee has two remedies. Either it can file an appeal to the Tribunal under Section 61(2) or it may prefer revision to the Commissioner under Section 62(1) [vide proviso to Section 61(2)]. The proviso to Section 61(2) further enjoins that where the assessee opts to file revision under Section 62(1), it is precluded from filing second appeal to the Tribunal. That means, the second appeal is barred in such a case.
14. Section 62(1) provides for revision by the Commissioner either on his own motion or on an application by a dealer/person aggrieved. The revisional power vested with the Commissioner is very wide and is almost co-extensive with the powers of an appellate authority. The Commissioner is empowered to call for the record of any proceeding, make such inquiry or direct such inquiry to be made as he considers necessary and pass such order as he thinks fit. He can either accept the assessee's revision wholly or partly or decline to interfere. Then, Clause (a) of the first proviso to Section 62(1) prescribes a bar against the Commissioner exercising the power of revision under Section 62(1) where a second appeal has been filed against the appellate order OR where a first appeal against an order of assessment has already been filed or the time for preferring such first appeal has not expired.
15. However, in certain situations, appeal against the order of Commissioner passed in exercise of his revisional power is also provided by the Act. Sub-section (4) of Section 62 enables a dealer or other aggrieved person to file an appeal to the Tribunal against the Commissioner's revisional order passed under Sub-section (3) of Section 62. Sub-section (3) empowers the Commissioner to exercise power of revision suo motu if he considers that any order passed by lower authorities is erroneous and prejudicial to the interests of the Revenue. Thus, the Commissioner can exercise power of revision either (a) at the instance of the dealer or (b) on his own motion in the interests of Revenue. The second proviso to Section 62(3) enjoins that the Commissioner cannot resort to the power of revision under Sub-section (3) if a second appeal against the relevant order is pending or has been decided on merits.
16. Another provision which provides for appeal to the Tribunal against the order passed by Commissioner in revision is Section 62(6). Under Section 62(6), the Commissioner can file an appeal to the Tribunal against the order of his predecessor or the Additional Commissioner in so far as that order is prejudicial to the interests of Revenue.
17. It is also relevant to notice Sub-section (7) of Section 61 which has also been referred to by the applicant. The relevant part of the Sub-section reads as follows: In the case of an order passed in first appeal under this section against which an application for revision is filed to the Commissioner under Sub-section (1) of Section 62, the order passed in revision shall be final.
18. This Sub-section which provides for finality of an order of revision does not in terms come into play in the instant case as no first appeal was filed and no order of appellate authority was subjected to revision. However, the fact remains that there is specific provision under the M.P. Act providing for appeal to the Tribunal against an order passed in revision by the Commissioner under Section 62(1).
19. This in brief is the scheme of appeals and revisions under the M.P.Commercial Tax Act.
(1) No appeal to Tribunal is provided against the revisional order passed by the Commissioner under Section 62(1) on an application filed by the assessee.
(2) However, if the Commissioner exercises the power of revision suo motu under Section 62(3) in the interests of Revenue and passes an order prejudicial to the assessee, then, the assessee has a right to appeal to the Tribunal against that order.
21. Keeping in view the above provisions of the State Act, we have to consider the amended sections, namely Sections 20(1) and 25 of the CST Act. When Chapter VI was first introduced by the Central Sales Tax (Amendment) Act (Act 41 of 2001), the Parliament in its wisdom thought it desirable to provide a direct appeal to the Central Sales Tax Appellate Authority (for short, "the CSTAA") even against an order of assessing officer made under the substantive provisions of the CST Act.
This measure was conceived apparently to remove the uncertainty and to find a speedy legal solution to the conflicting claims by the sales tax authorities of different States as regards the nature of transactions involving inter-State movement of goods. Surprisingly, the provisions of Chapter VI were brought into force with effect from March 17, 2005, i.e., nearly four years after Act 41 of 2001 was enacted. Again, in the year 2006, substantial changes were introduced in regard to the forum for deciding the appeals and the stage at which CSTAA should step in.
Now, under the amended Section 20, appeals to CSTAA arising out of the assessments made under Section 6A read with Section 9 of the CST Act can only be directed against the orders of the highest appellate authority of the State (hereafter referred to as "the highest A.A. of the State"). Therefore, the amended Section 25 provides for transfer of appeals pending before CSTAA to the highest A.A. of the State unless the appeal is preferred against the order of the highest A.A. itself.
By virtue of the proviso to Section 25(2), the highest A.A. of the State, in its turn, is required to forward the appeal to the first appellate authority if it transpires that the appellant did not avail of the opportunity of filing first appeal. Thus, under the present scheme of the Act, the CSTAA, as an apex appellate body, will only adjudicate appeals preferred against the orders of the highest appellate authorities of various States. The obvious reason behind this amendment is to facilitate the apex appellate authority to have the benefit of findings reached by the appellate authorities of the concerned State so that a clear picture will be in place at the highest level of adjudication on law and facts. A direct appeal to CSTAA against an assessment order passed by a primary authority was considered to be inappropriate.
22. The CSTAA is now called upon to adjudicate an appeal filed against the highest A.A. of the State in respect of a dispute falling under Section 6A read with Section 9 of the CST Act, which has inter-State ramifications, notwithstanding anything contained in the general sales tax law of a State. Thus a special forum at a national level for deciding the appeal at the final stage has been created. Keeping in view the peculiar nature of the disputes that arise involving more than one State, the law-makers wanted to provide a comprehensive remedy to the assessees who are often faced with multiple demands of taxes on the same transaction. The fact that such controversies have an impact on the flow of inter-State trade and commerce as guaranteed by Article 301 of the Constitution may also be one of the considerations that weighed with the Parliament in engrafting Chapter VI into the CST Act. It is also relevant to mention that the Supreme Court of India, in the case of Ashok Leyland Ltd. v. Union of India pointed out the need to create a Central mechanism to resolve such inter-State disputes.
23. The crucial question to be considered now is whether this authority was justified in taking the view that the pending appeals of the applicant stood transferred to the highest A.A. in the State and taking the consequential action to transfer the appeal papers to the Tribunal which is the highest A.A. of the State of Madhya Pradesh. The argument of the applicant's counsel is that under the provisions of the M.P.Commercial Tax Act no appeal lies to the Tribunal directly against the assessment order or from an order passed by the Commissioner in revision under Section 61(1) of the Act. Therefore, the argument proceeds, the question of transfer to the Tribunal of an appeal which it cannot statutorily entertain and decide under the said Act does not arise. In effect, the contention of the applicant is that the provisions contained in Sections 25(1) and (2) do not come into play where the Tribunal is precluded under the State Act to hear the appeal straightaway or where the Tribunal is not in a position to forward the appeal to the first appellate authority for disposal in the first instance. In the instant case, the applicant filed a revision to the Commissioner instead of filing first appeal to the designated appellate authority and invited the decision of the revisional authority and in this situation, the applicant cannot maintain an appeal to the Tribunal or to the first appellate authority. The amended transfer provision contained in Section 25 will not therefore stand in the way of this authority (CSTAA) retaining the appeals on its file and deciding such appeals as per by the unamended Act. In other words, the remedy of appeal to this authority which was available to the applicant under the unamended provisions of the CST Act (inserted by Act 41 of 2001) remains unaffected and the transfer of such appeal to the highest A.A.of the State under the amended Section 25 does not and cannot arise.
The counsel therefore submits that the appeal should have been kept on the file of this authority and decided on merits. It is pointed out that with the transfer, the applicant has been left without remedy of appeal either to this authority or to the Tribunal which, as stated earlier, expressed its inability to deal with the appeal further for want of jurisdiction. This is a situation hardly contemplated by Chapter VI of the CST Act, it is submitted.
24. The respondent's counsel, apart from contending that no appeal lies to this authority against the order passed in revision, took strong exception to the applicant seeking other remedies while keeping the writ petitions pending.
Contentions examined in the light of amended provisions of the CST Act and the State Act.
25. On deep consideration, we find no merit in the contentions advanced on behalf of the applicant. The whole argument proceeds on the premise that the Tribunal which is the highest A.A. cannot deal with the appeal for the simple reason that the State Act (M.P. Commercial Tax Act) does not provide for appeal to the Tribunal directly against the assessment made by the primary authority or against the order passed on revision under Section 62(1) of the Act. But, the argument overlooks the fact that under Chapter VI of the CST Act, a special remedy and special forum has been created to cope up with the situations giving rise to multiple tax demands on the same transaction of transfer of goods from one State to another. Before the dispute reaches the apex adjudicatory body, namely, CSTAA, it was considered expedient that the highest A.A.of the State should first deal with the appeal and record its findings.
That is the reason for amendment. Normally, the highest A.A. in almost all the States is a Tribunal presided over by a high-ranking judicial officer. It was evidently felt that it would be in the fitness of things, if such body (Tribunal) decides the appeal first. Realising this need, the Parliament by amending Section 25 of the CST Act, made a specific provision to the effect that the pending appeal transferred by the CSTAA shall be dealt with by the highest A.A. of the State. By virtue of the specific legislative mandate under Sub-section (2) Section 25, the highest A.A. (Tribunal) is empowered and obliged to deal with the appeal. However, this Sub-section is subject to a proviso which lays down that if the applicant did not avail of the opportunity of filing first appeal the case shall be forwarded by the highest A.A.to the first appellate authority so that after the decision in such first appeal, the highest A.A. will have an occasion to deal with the further appeal if any preferred against that order. The power of entertaining and deciding the appeal by the Tribunal (highest A.A.) is by virtue of a specific provision and power conferred on it by the CST Act. The existence or otherwise of such power cannot be judged with reference to the provisions of the StateSales Tax Act, when a specific provision is made in the CST Act itself.
26. As the substantive liability to tax arises under the provisions of the Central Sales Tax Act, the provisions of the State Sales Tax Act in relation to assessments, appeals and other procedural provisions are assimilated into the fabric of Central sales tax law. Though the machinery for enforcing the CST Act is that of the State, its power and authority is drawn from the Central Sales Tax Act, not from the State Act. As is well known, the CST Act is administered and enforced through the media of State machinery as a measure of convenience and also for the reason that the revenues raised by way of taxation on inter-State sales/purchases are ultimately assigned to the State within which the tax is leviable [vide Section 269(2) of the Constitution].
27. Prior to the introduction of Chapter VI the only relevant provision under which the State sales tax authorities including the highest appellate authority (Tribunal) were vested with necessary powers was Section 9(3) of the CST Act which is a general provision. After the insertion of Chapter VI, the provisions of Section 9(3) get pro tanto to modified in so far as the adjudication of inter-State disputes falling within the purview of Sections 6A and 9 of the CST Act. Viewed from another angle, Section 9(3) should now be read harmoniously with the new provisions of Chapter VI which carved out special remedies for the redressal of assessees' grievances consistent with the avowed purpose of Chapter VI. It, therefore, admits of no doubt that the provisions in the CST Act relating to appeals and matters connected therewith even if they are at variance with the provisions of the State Act, will have to be given effect to. In such a case, there is really no conflict. The Central Sales Tax Act and the State Sales Tax Acts are traceable to the legislative powers enumerated in different Lists of the Constitution and they deal with different though allied subjects of taxation. At the cost of repetition it is reiterated that in the matter of enforcing the Central Sales Tax Act and the collection of CST, the procedural and machinery provisions of the State Acts do not operate by their own force but they have their provenance in and draw their sustenance from the Central law. The machinery provisions of the State Act would be complementary to the working of the CST Act but they cannot prevail over the specific machinery provisions contained in the CST Act.
28. The plain language and contents of Section 25(2) amply supports the view we are taking. The expression "shall proceed to deal with such appeal" is a clear mandate addressed to the highest A.A. of the State.
Such authority is statutorily bound to decide the appeal, just as it were an appeal filed under the general sales tax law of the State. The obligation to deal with the appeal is clear and categorical and is not dependent on the consideration whether such appeal would otherwise lie to that authority under the State sales tax law. However, the proviso which is in the nature of exception or qualification to the main part of Section 25(2) enjoins that if the appeal was not filed by the assessee at the earlier stage, the Tribunal (highest A.A. of the State) will forward the appeal to that authority instead of deciding the appeal straightaway. The two courses open to the Tribunal therefore are : (a) to forward the appeal to the first appellate authority if first appeal was not preferred earlier; (b) to decide the appeal if the first appellate authority has already decided the same or is not in a position to decide it on account of statutory bar or otherwise.
29. In the case on hand, the Tribunal cannot adopt the first course because the first appellate authority cannot decide the appeal in view of the fact that the assessee instead of preferring first appeal against the assessment, canvassed its correctness by filing revision to the Commissioner and thereby disabled itself from availing of the remedy of first appeal. In the face of the order passed by the revisional authority at the instance of the applicant, the first appellate authority who is subordinate to the Commissioner can no longer exercise its appellate jurisdiction for the obvious reason that he cannot sit in judgment over the revision order passed by the superior officer. It is clear from the scheme contained in Section 61 of the M.P. Act that the appellate authority can only entertain an appeal against the assessment order, etc., passed by a primary authority. An assessment order already tested in revision cannot be the subject-matter of first appeal under the Act. Leaving aside the provisions of the State Act for the time being, it would be wholly inappropriate and improper on the part of the Tribunal to forward the appeal to the first appellate authority despite the decision taken by a superior authority in whom almost all the powers under the State Act are vested. The first appellate authority, confronted with the order passed by the Commissioner, cannot be expected to act independently and to reach a conclusion at variance with that of the order passed by him.
The basic assumption underlying the proviso to Section 25(2) is that the first appellate authority does not have any legal impediment to deal with the appeal independently. There is no question of appeal being forwarded to the first appellate authority which is not competent to decide either because of statutory bar or legal disqualification to hear the appeal. Thus, in the instant case, the Tribunal (highest A.A.of the State) cannot invoke the said proviso and forward the appeal to the first appellate authority. In the circumstances, the Tribunal itself has to decide the appeal in terms of the mandate contained in the main provision of Section 25(2) as amended by the CST (Amendment) Act, 2005. That is what the Tribunal is expected to do in the present case as a sequel to the transfer of appeal file to it.
Connotation of the expression "in the same manner..." occurring in Section 25(2) 30. The meaning of the words "in the same manner as in the case of an appeal filed according to the general sales tax law of the appropriate State" is what remains to be considered. Do they control and whittle down the scope of peremptory expression "proceed to deal with such appeal"? Whether the said words compel the Tribunal to reject the appeal as not maintainable on the ground that such an appeal has not been provided by the State sales tax law? In our view, the said words "in the same manner...,etc.," do not control or curtail the amplitude of the expression "proceed to deal with such appeal". In our understanding, the said words only refer to the mode or manner of disposal of the appeal. The manner of disposal should, as far as possible, be in accordance with the general sales tax law of the State.
In other words, the procedural provisions governing the processing and disposal of the appeal which are laid down under the general sales tax law of the concerned State would equally apply to the appeal in question. It would include the power to call for a finding, to direct further inquiry or to remand the matter for fresh disposal, to summon the records and so on. What Section 25(2) in effect and in substance means is this : "Treat the appeal transferred from the CSTAA as a regular appeal filed under the State sales tax law. Deal with that appeal in the same manner as an appeal filed under the State Act by adopting the procedure which is normally applied under the State law while dealing with and disposing of the appeal". The aforementioned words do not empower the Tribunal to go into the question of maintainability of appeal if filed under the State Act.In Asnew Drums Ltd. v. Maharashtra State Finance Corporation , the expression "manner" was construed as "mode of procedure". The expression "in the same manner", it was observed in Sales Tax Officer v. K.I. Abraham , denotes the mode in which the act is to be done. The following observations of Lord Campbell C.J., in a vintage decision in Acraman v. Herniman [1851] 117 E.R. 1164 were quoted with approval in Abraham case : ...the words 'in manner and form' refer only 'to the mode in which the thing is to be done, and do not introduce anything from the Act referred to as to the thing which is to be done or the time for doing it'.
32. The procedure may pertain to pre-hearing stage or the stage of hearing or its disposal. The expression "deal with the appeal in the same manner" occurring in Section 25(2) cannot be construed as to concede discretion to the Tribunal to reject the appeal as not maintainable under the State Sales Tax Act. Such a course if adopted would fly in the face of the explicit mandate addressed to the Tribunal (highest A.A. of the State) to proceed to deal with the (transferred) appeal. The concluding part of Sub-Section (2) "from the stage it was reached before such transfer or from any earlier stage or de novo as such highest A.A. of the State may deem fit" also lend support to the view that the Tribunal is bound to deal with the appeal transferred to it on merits unless the case falls within the proviso. The said words in the concluding part of Section 25(2) would indicate that the Legislature did not contemplate the situation of appeal not being heard at all by the Tribunal even where the proviso does not apply. The appeal is bound to be taken up for hearing by the Tribunal from whatever stage it is. That is the sum and substance of the main provision in Section 25(2).
33. The net result of the foregoing discussion is our firm conclusion that the transmission of appeal records to the highest appellate authority of the M.P. State, namely, the Tribunal was in order and the Tribunal has to deal with the appeals on merits without forwarding the same to the first appellate authority under the proviso to Section 25(2) of the CST Act. The appeal has to be further processed, heard and disposed of in accordance with the procedure prescribed under the State sales tax law. However, we would like to add a caveat here. The hearing of appeals by the Tribunal is subject to the withdrawal of writ petitions filed by the applicant in the High Court of Madhya Pradesh or obtaining permission from the High Court to pursue the appeals before the Tribunal. It is only appropriate and proper that the applicant should choose one remedy instead of pursuing two different remedies simultaneously, especially when the same issue is involved in the writ petitions. The Tribunal will otherwise be handicapped to deal with the transferred appeals having regard to the fact that the High Court is seized of the same matter. It is relevant to mention that the learned Counsel for the applicant stated in the course of hearing before this authority that writ petitions will be withdrawn if this authority decides to retain the appeals and decide the same on merits. There is no good reason why the applicant should not adopt the same approach even if instead of this authority, the Tribunal (highest A.A. of the State) deals with the appeals in the first instance. One more direction is required in the interests of justice. The case has had a chequered history and lot of time is consumed in this process. Hence, we direct the Tribunal of Madhya Pradesh State to dispose of the appeals as far as possible within four months from the date of receipt of proof of withdrawal of writ petitions or the order of High Court granting liberty to proceed with the appeals.
Whether the appeals filed earlier before CSTAA were otherwise maintainable 34. There is one last point which has to be considered before parting with the case. In the course of hearing of this application, a doubt was expressed by us whether under the pre-amended provisions of Chapter VI, the appeal preferred against the revisional order of the Commissioner was maintainable before this authority because if the appeals filed before this authority in 2005 were incompetent, the question of transferring such appeals to the Tribunal does not arise.
We are, however, inclined to take the view that the appeals were maintainable under the unamended Section 20(1) of the CST Act.
35. Section 20(1) as it then stood provided for appeal to the CSTAA and under that provision, an appeal lay against any order of the assessing authority made under Section 6A read with Section 9 of the Act if it relates to any dispute concerning the sale of goods effected in the course of inter-State trade. It is possible to contend that the assessment order has got merged with the order of the revisional authority whom the applicant had approached under Section 62(1) of the M.P. Commercial Tax Act and an appeal against such revisional order was not provided for under Section 20(1) of the CST Act as it then stood.
However, we need not go into the larger issue of merger and its effect.
Without going into that question this aspect can be resolved on a shorter ground. In the pre-existing Section 20(1), the right of appeal is conferred against the order of the "assessing authority" (made under Sections 6A and 9 of the CST Act). We agree with the learned Counsel for the applicant that the order passed by the Commissioner in a revision proceeding can also be treated as an order of the assessing authority in view of the provisions of the MPCT Act. The connotation of the expression "assessing authority" should necessarily be understood with reference to the scheme and provisions of the State Act in the absence of a specific definition in the Central Act. Under the M.P.Act, the Commissioner is assisted by various authorities specified in Section 3(1) of the MPCT Act including various officials who make the assessment in the first instance. The power of assessment under Section 27 of the M.P. Act is conferred on the Commissioner. Section 27 which deals with assessment in the first instance does not use the expression "assessing authority"; which is the usual expression found in other enactments, but it speaks of "Commissioner" only. The Commissioner has delegated his powers under Rule 91 to the Commercial Tax Officers, etc., to make assessments under Section 27. It is by virtue of this delegated power that the Assistant Commissioner of Sales Tax has exercised the power of making the original assessment in the instant case. The Commissioner, notwithstanding the delegation of power, retains his identity as an assessing authority under Section 27. The Commissioner in one sense is the assessing authority, in another sense is the revisional authority and in yet another sense, he is administrative head in-charge of enforcement of the Act. Whether or not the order passed by the Commissioner under Section 62(1) can be properly described as assessment order, it is certainly an order of the "assessing authority". So long as the Commissioner does not shed his character as the assessing authority under Section 27, the order passed by him after scrutiny of the order of his delegate can still be regarded as an order of the assessing authority for the purpose of Section 20 of the CST Act as it then stood. Such wider construction placed on the expression "assessing authority" in the old Section 20(1) would better advance the purpose of that section and the allied provisions contained in Chapter VI. If a narrow view is taken, the assessee may be left without any remedy to bring the appeal before the CSTAA merely because the assessment order passed by the primary authority was tested in revision. It would be reasonable and proper to adopt the view that the aggrieved dealer's right of appeal under the pre-amended Section 20(1) of the CST Act was available against the original assessment order passed by primary authority as well as the order passed in revision by the Commissioner under Section 62(1) of the MPCT Act.
36. We, therefore, hold that the original appeal filed under the pre-amended provisions was maintainable but it stood transferred to the Madhya Pradesh Tribunal in view of the amended Section 25(2) of the CST Act. This authority accordingly transmitted the appeal papers vide its order dated March 2, 2006. We find no valid ground to disturb that order.
37. In the result, the application is dismissed but subject to the observations made in paragraph 9 supra.