JUDGMENT
K.C. Agarwal, J.
1. This petition under Article 226 of the Constitution has been filed by Indo Lube Refineries, G-21, Industrial Area, Gorakhpur, for quashing the notice issued by the Sales Tax Officer, Sector I, Gorakhpur, for passing assessment order for the year 1981-82 and for prohibition restraining the Sales Tax Officer from making assessment in respect of the years 1981-82, 1982-83 and 1983-84.
2. For deciding the controversy involved in this petition, since it is not necessary for us to express our opinion on the merits, we confine ourselves to the facts notes for discussion to decide about the interpretation of Section 35 of the Sales Tax Act.
3. The petitioner is a registered dealer under the U.P. Sales Tax Act, having been granted a provisional registration under Section 8-B of the Act with effect from 20th June, 1981. It was also granted a recognition certificate as a manufacturer to make purchases of raw materials. For the assessment year 1981-82, the petitioner filed return. While the proceedings of the aforesaid assessment year were pending, the petitioner moved an application before the Commissioner, Sales Tax, under Section 35 of the Act on 20th August, 1982, claiming decision from the Commissioner that the trade in which the petitioner was engaged did not amount to a process of manufacture, hence no sales tax was leviable. The Commissioner, Sales Tax, upheld the contention of the petitioner by the order dated 20th November, 1982. His finding was that :
Lubricating oil purchased locally and sold within the State by the applicant after purification would not be liable to tax under the U.P. Sales Tax Act.
4. The aforesaid order was produced before the Sales Tax Officer in the assessment proceedings for the year 1981-82. It was, therefore, that the petitioner received six notices under Rule 41(5) of the Rules framed under the U.P. Sales Tax Act for the months of April, May, June, July, August and September, 1985 requiring the petitioner to show cause as to why the provisional assessment for the aforesaid months of the year 1985 be not made against the petitioner. The petitioner filed a reply but, subsequently, assessment orders were made. The petitioner filed Writ No. 1037 of 1985 in this Court. Since in this petition no prayer restraining the Sales Tax Officer from passing any assessment order for the assessment years 1981-82, 1982-83 and 1983-84 had been made, the petitioner filed the present writ petition in respect of the aforesaid three years. Earlier, Writ No. 1037 of 1985 was dismissed by this Court on the ground of alternative remedy as against the assessment orders.
5. Through this petition, the petitioner claimed that the order under Section 35 of the U.P. Sales Tax Act passed by the Commissioner, Sales Tax, holding that after purification there was no liability of tax, had become final, hence proceedings in respect of the aforesaid three assessment years were liable to be decided in favour of the petitioner and as the Sales Tax Officer made some observations which created an apprehension that the order of the Commissioner will not be accepted, the petitioner was compelled to file the present writ petition.
6. The relevant portion of Section 35 of the U.P. Sales Tax Act is reproduced below:
If any question arises, otherwise than in a proceeding pending before a court or before an assessing authority under Section 7 or Section 21, whether, for the purposes of this Act…the person or the dealer concerned may, after depositing the fee specified in Section 32, submit an application to the Commissioner of Sales Tax, along with such documents as may be prescribed.
7. Sub-section (2) of Section 35 confers power on the Commissioner, Sales Tax, to decide the question after affording opportunity to the two sides. Sub-section (3) of Section 35, which is material for our purposes, reads :
No decision of the Commissioner of Sales Tax under this section shall affect the validity or operation of any order passed earlier by any assessing authority, appellate authority, revising authority or the Tribunal.
8. Sub-section (5) of Section 35 of the U.P. Sales Tax Act reads as under !
A decision given by the Commissioner of Sales Tax under this section shall, subject to an appeal to the Tribunal, be final.
9. Learned counsel for the petitioner urged that as the order of the Commissioner had become final under Sub-section (5) of Section 35; it was binding on the Revenue as well as the petitioner and it was not open to the Sales Tax Officer, who is inferior in hierarchy to the Commissioner of Sales Tax, to ignore the order of the Commissioner, Sales Tax and to take a view different from what has been taken under Section 35 of the Act. The word “final”, according to the submission of the petitioner’s counsel, which is based on the dictionary meaning, obliges the Sales Tax Officer to treat the order as conclusive decision and the same cannot be altered or undone.
10. For the purposes of interpreting Section 35, it is necessary to understand the nature of jurisdiction which the Sales Tax Officer and the Commissioner exercise while dealing with the question which comes before them. The Sales Tax Act has made a clear distinction between judicial proceedings which have to be conducted and concluded in accordance with Sections 7, 9, 10, 10-B, 21 and 35. The proceedings from Sections 7 to 10-B are of a different character, having different content than the one contemplated by Section 35. This is clear from the opening portion of Section 35 itself. It provides “otherwise than”. It advisedly excludes a proceeding pending before a court or before an assessing authority under Section 7 or Section 21. It is a type of miscellaneous jurisdiction which is required to be exercised only on given circumstances or situations being established. In respect of the proceedings under Section 7 (which will take within itself an appeal and revision), the legislature has not made the Commissioner of Sales Tax a final arbiter. The Sales Tax Officer or the assessing authority; when he determines the turnover with a view to assess tax liability, acts as a Tribunal. It has all the trappings of a court. Likewise, the appellate authority under Section 9 and the Tribunal under Section 10 of the Act are Tribunals. Under Rule 75, these Tribunals are invested with the powers as are vested in a civil court while trying a suit, to enforce the attendance of persons and examining them on oath, to compel the production of documents and to issue commissions for examination of witnesses. These proceedings are judicial within the meaning of Sections 193 and 228 and for the purposes of Section 196 of the Indian Penal Code. The Commissioner does not possess any one of these powers while dealing with an application under Section 35. He does not act as a Tribunal. The nature of his jurisdiction is administrative. As said above, this intention has been clarified by the legislature itself by using the language “otherwise than in a proceeding pending before a court or before an assessing authority under Section 7 or 21”. This has been deliberately done by the legislature with a view to maintaining and preserving the sanctity of the judicial proceedings under the Act. Giving of any other interpretation and holding that Section 35 also falls in the same category would be acting against the clear terms of the statute, apart from the intention behind, Section 35.
11. Section 9(7) of the U.P. Sales Tax Act states that the appellate authority shall be under the superintendence and control of the Commissioner of Sales Tax. However, the proviso is significant. It states that:
In the exercise of such superintendence and control, no orders, instructions or directions shall be given by the Commissioner of Sales Tax so as to interfere with the discretion of the appellate authority in the exercise of its appellate functions.
12. Sub-section (7) of Section 9 leaves no room for doubt that the Commissioner of Sales Tax while exercising the powers under Section 35 of the Act cannot assume the powers which may conflict with Sub-section (7) of Section 9. The two provisions have to be harmoniously construed. The harmonious construction means that the Commissioner of Sales Tax has no doubt administrative control, but has no power to pass any order or to decide any controversy under Section 35 which may interfere with the judicial processes contemplated by the U.P. Sales Tax Act.
13. There are many proceedings under the U.P. Sales Tax Act which are not judicial, e.g., grant of recognition certificate, registration certificate and recovery proceedings. In these proceedings, the order passed by the Commissioner, Sales Tax, will bind the authorities.
14. Under Section 43-A of the Motor Vehicles Act the State Government has power to issue instructions to the transport authorities which shall be binding on them. The Supreme Court has repeatedly held that the directions so issued by the State Government will only be administrative in nature. They cannot interfere with the judicial discretion of the authorities (see Raman and Raman Limited v. State of Madras AIR 1959 SC 694, R. Abdulla Rowther v. State Transport Appellate Tribunal AIR 1959 SC 896 and Rajagopala Naidu v. State Transport Appellate Tribunal AIR 1964 SC 1573). In this case, the Supreme Court observed :
It would be legitimate to assume that the legislature intended to respect the basic and elementary postulate of the rule of law, that in exercising their authority and in discharging their quasi-judicial function, the Tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. It is of the essence of fair and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State.
15. So much argument on finality has been made by the petitioner that leads one to think that in case the Commissioner of Sales Tax under Section 35 of the Sales Tax Act would have decided the controversy against the petitioner or the assessee, the assessee would have not made the same argument. In that event, the stand of the assessee could, in our opinion, be right. The assessee would have not reconciled to the payment of tax if the Commissioner would have found the petitioner to be liable to pay the same.
16. The word “final” used in Sub-section (5) of Section 35, to us, means only with regard to the proceedings contemplated by that section that the order of the Commissioner of Sales Tax would be final. That would preclude the parties from coming to the Commissioner again and again for the same notice for which an order is given under this provision. After the order of the Commissioner, nothing would be left open to further dispute so far as the Commissioner is concerned. Between the partjes, the finding and conclusions of the Commissioner for the purposes of Section 35 would be final disposal. But, this will not bar the other authorities from deciding the controversy before it on its own by looking to the evidence and considering the questions of law which comes before it.
17. On behalf of the State, arguments were made by the counsel that since the assessment proceedings had started in respect of the assessment year 1981-82, the Commissioner, Sales Tax, had no power to entertain the application of the petitioner filed under Section 35. It was submitted that since he had no jurisdiction, the order or judgment given by him was void and liable to be ignored. This would have no effect on the proceedings of the assessment years in question and future assessment years. For this submission, the learned Additional Chief Standing Counsel laid emphasis on the word “pending” in Sub-section (1) of Section 35. It does appear that in a pending case the Commissioner, Sales Tax, has no power to give any order under Section 35. For this proposition, reliance was placed on Bhavana Chemkds v. Commissioner, Sides Tax 1978 UPTC 420. This decision has been attempted to be distinguished by the petitioner’s learned counsel on the ground that the question as to whether an order passed by the Commissioner after the return had been filed or a notice for assessment had been issued would be without jurisdiction, was not involved in that case.
18. We do not consider it necessary to pursue this matter any further inasmuch as on the interpretation of Section 35 itself, we are unable to uphold the submission that the order of the Commissioner of Sales Tax is binding in the assessment proceedings and that those proceedings have to be decided in accordance with the same.
19. The submission of the petitioner’s learned counsel that on account of the order of the Commissioner, since the petitioner expanded its business> the sales tax authorities are now estopped under the law from taking a stand contrary to the one which is in the order also has no merit. The petitioner had never been assured that no tax would be chargeable from it even if it is payable under the law. The petitioner if thought that the order of the Commissioner was conclusive and the last word and on that basis regulated its business activities, it is the petitioner which has to thank itself. There was neither any representation given nor could a business concern like the petitioner believe it to be so.
20. For the reasons given above, the writ petition fails and is dismissed under Chapter XXII, Rule 2, of the Rules of the Court. The stay orders passed from time to time by this Court are vacated. The Sales Tax Officer will now be entitled to proceed with the assessment proceedings in respect of the years 1981-82 1982-83 and 1983-84.