JUDGMENT
R.K. Vijayvargiya, J.
1. By this application under Section 44(2) of M.P. General Sales Tax Act, 1958 (hereinafter referred to as “the Act”) and the Rules made thereunder, the applicant has prayed that the Board of Revenue be directed to state a case and refer the questions of law mentioned in paragraph 13 of the application arising out of the order of the Board in Sales Tax Appeal No. 322-PBR/77 for the opinion of this Court.
2. The facts giving rise to this application briefly stated are as follows : The applicant carries on business in motor parts, fuel injection pumps, white metal, etc. The applicant was assessed to tax under the Act for the financial year 1970-71. The gross turnover as per books of the dealer was Rs. 3,73,969. The Flying Squad had inspected the business of the dealer and recommended an enhancement of Rs. 10,00,000 in his turnover. The manager of the assessee-firm Shri Chopra had furnished certain loose papers and two diaries to the Flying Squad which contained notes regarding the business of firm, Auto Sales, as well as the branch firm known as Laxmi Engineering Works. These transactions were not entered in the accounts of the dealer. The assessing authority held that the proprietor of the assessee’s firm was not responsible for the unauthorised dealings of Shri Chopra and he did not derive any profit from the said dealings. He, however, held that if taking advantage of the goodwill of the firm its employees had done any business on their own account and this was connived at by the proprietor he must be held responsible for the business. The assessing authority, however, did not accept the report of the Flying Suqad and made a best judgment assessment determining the gross turnover as Rs. 5,50,000. After making deduction for tax-paid goods, the taxable turnover was determined as Rs. 3,87,474. On appeal the Appellate Assistant Commissioner granted an ad hoc relief of Rs. 40,000 in the turnover of the dealer. On further appeal by the assessee the Board of Revenue remanded the matter to the assessing authority to re-examine the case in the light of the directions given by the Board and for further enquiry and disposal according to law. The application submitted by the assessee to the Board of Revenue to refer the questions of law arising out of the order of the Board for the opinion of this Court was dismissed. Hence the applicant has submitted this application.
3. The learned counsel for the applicant contended that the assessment order and the order passed in appeal by the Appellate Assistant Commissioner granting relief to the applicant became final because the department did not prefer appeal from the order of the Appellate Assistant Commissioner before the Board of Revenue. The Board of Revenue was, therefore, not justified in law in remanding the case for reassessment because it may result in enhancement of the assessment and the relief granted to the applicant may be wiped out. The learned Government Advocate appearing for the department contended that the Board has the power to remand the matter for reassessment under the provisions of Section 38(5) of the Act. Thus a question of law does arise from the order of the Board of Revenue to the effect whether, on the facts and circumstances of the case, the Board of Revenue was justified in law in remanding the matter for reassessment. The other questions suggested by the applicant do not arise out of the order of the Board of Revenue.
4. As a result of the discussion aforesaid, the application is partly allowed. The Board of Revenue, M.P., Gwalior, is directed to state a case and refer the following question of law arising out of the order of the Board in Sales Tax Appeal No. 322-PBR/77 for the opinion of this Court:
Whether, on the facts and in the circumstances of the case, the order of remand passed by the Board of Revenue is illegal?
In the circumstances of the case the parties shall bear their own costs of this application.