JUDGMENT R. M. Sahai, J. - The following question has been referred for opinion of this court :
"Whether on the facts and in the circumstances of the case, the Additional Revising Authority was right in holding that the appeal filed by the dealer should have been entertained even when the dealer had not paid tax on cane crushers which had already been hold to be taxable by the High Court ?"
2. The assessee a dealer in goods of iron and steel and cane crusher filed its return for the assessment year 1961-62 and denied its liability to pay tax on the sale of cane crusher on the ground that they were agricultural implements. The assessing authority rejected the contention against which the assessee filed an appeal and disputed its liability to pay tax on the cane crusher. It did not deposit any tax on the turnover of cane crusher and when the appeal came up for hearing an objection was raised on behalf of the Department that the assessee having failed to deposit the tax assessed on the cane crusher he has failed to Company with the condition of proviso to Section 9 of the U.P. Sales Tax Act and the appeal was liable to be dismissed. The appellate court accepted the contention against which the assessee filed revision which was allowed on the following finding :
"The appellate authority should not be guided in the matter by what has been stated in the return filed by the assessee. The Appellate authority should examine the memorandum of appeal and determine by reference to the grounds set out in the memorandum and the relief sought in it, when to the turnover and the rate of tax admitted and not disputed by the assessee at the stage of filling the appeal. Having ascertained that the appellate authority will then proceed to determine the admitted tax liability."
The controversy whether cane crushers are agricultural implements was negatived by a decision of this court reported in Bharat Engineering & Foundary works vs. U.P. Government (14 S.T.C. page 262). In view of this decision the matter was no more res intergra. The decision was binding on the appellate authority and the Judge Revision. It was not open to the assessee to deny its liability to pay tax on cane crusher on the ground that they were covered by the entry agricultural implements. No amendment or modification to the Notification on agricultural implements had come at the time of filing of the appeal. In the circumstances the plea raised by the assessee both before the assessing authority and the appellate authority was not bonafide. Mr. V. D. Singh appearing on behalf of the Commissioner Sales Tax has brought to our notice a decision of the Supreme Court in M/s. Kanpur Vansapati Store, Kanpur vs. C.S.T. (1973 U.P. Tax Cases 686 : 1973 CTR (S.C.) 289). It was observed by their Lordships of the Supreme Court.
"If we come to the conclusion that expression tax admitted in the proviso to section 9(1), means that admitted in the memorandum of appeal, section 9 can be made wholly useless. All that an assessee has to do is not to admit his liability, in the memorandum of appeal, werever his stand might have been before the assessing authority. Ordinary no interpretation should be placed on a provision which would have the effect of making the provision either otiose or a dead letter."
In view of this observation it is clear that if the assessee is permitted to deny its liability on cane crusher despite the controversy having been settled by this court it would amount to rendering the provision otiose. In the circumstances we answer the question to us in the negative in favour of the Department and against the assessee by saying that the Additional Revising authority was not right in holding that the appeal filed by the dealer should have been entertained when the dealer had not paid tax on cane crusher which had already been held to be taxable by the High Court. As no body has appeared on behalf of the assessee there shall be no order as to costs.