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TMI Blog1976 (4) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... e for asst. yr. 1971-72 had held that are carbons would be liable to the multi point rate of tax and not as accessories of cinematographic equipments under item 6 of the First Schedule at 15 per cent. This decision prompted the appellant to file petitions before the Dy. CIT (CT) Madras division to reagitate the matter for asst. yr. 1969-70 and 1970-71. It wanted the cinema are carbons to be taxed at multi point and had incidentally taken up the question of rate of tax on pumpsets as electrical goods. The Dy. CIT was asked to grant suo motu relief under s. 32 of the Tamil Nadu General Sales-tax Act with reads as under : "32. Special powers of the Dy. CIT : (1) The Dy. CIT, may of his own motion, call for and examine and order passed or proceeding recorded by the appropriate authority (under s. 4-A), s. (12), s. 14, s. 15, or sub-s. (1), and (2) of s. 16 and may make such inquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such order thereon as he thinks fit. (2) The Dy. CIT shall not pass any order under sub-s. (1), if (a) the time for appeal against the order has not expired; (b) the order has been made the subject of an appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e later year. He also found that the appellant had not collected Sales-tax and that it was eligible for exemption even by virtue of some G.Os. This according to the appellant should distinguish his case from the facts of Bombay Ammonia Pvt. Ltd. vs. State of Tamil Nadu report in 37 STC 517 : 1976 CTR (SC) 271. He wanted the Tribunal to follow the public duty enjoined on a public authority as laid down by Supreme Court in Hirdayanarain s case (78 ITR 26). The third hurdle against our jurisdiction was that the assessment were the subject-matters of the AAC s orders. But it was the appellant s case that the issues in appeal before the AAC were different from those issues on which relief was claimed before the Dy. CIT. It was however pointed out to him that the Madras High Court in the case of State of Madras vs. The India Coffee Board, Batlagundu reported in 11 STC 1, held that MGST Act, 1939 treats an order of assessment as a single one subject to the appeal by a tax-payer the State being left with the limited right to get the orders revised by the competent authority to correct errors in assessment. It was further pointed out that the statute envisages two sets of remedis appeals an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desh (37 STC 378) 1976 CTR (SC) 161. Similarly he claimed that even the relief in respect of rate of tax on pumpsets was againsets the appellant on merits. 4. We have careful considered the records as well as the arguments. We find that it is not possible for us to go into the merits of the questions involved. We are lacking in jurisdiction for more than one reason : (1) We have consistently taken the view that this Tribunal has no jurisdiction to entertain an appeal against the order of Dy. CIT where such order does not put him in a worse position than the assessment order in view of the Privy Councils decision under analogous law (In India IT Act, 1922 where provisions are pari material) in Tribunal Trust s case (16 ITR 214) .in the following words : " If the assessee has a compliant against any assessment or order made by a subordinate officer, he had the appropriate and specific remedy which the Act provides. The CIT may act under s. 33 with or without the invitation of the assessee if he does so, without invitation, it is clear that, if he does so nothing to worsen the position of the assessee, the latter can acquire no right; the review may be a purely Departmental m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining to grant the claim for exemption could not have been interfered with, though the claim in the Supreme Court s case related to the claim for exemption on the basis that it is a works contracts, while in the appellants case the claim relate to rate of tax. This distinction in our view, is not material. Hence even if we had the power to entertain an appeal where the assessee is put in no worse position we are not in a position to say that the Dy. CIT was not right in declining to exercise such power. (3) There is still another ground which had not been specifically mentioned in the orders of the Dy. CIT. Both the impugned orders had been the subject-matter of appeal before the AAC though on different issues. Sec. 32 specifically bars the Dy. CIT by using the words "shall not pass any order" if "the order has been made the subject of an appeal to the AAC " This bar is categorical. The counsel says that the order consists of decisions on various issues and that it is open to the Dy. CIT to revise the assessment on issues which had not become the subject-matter of appeal. This view, that a single order is really several on the basis of issues arising in those order, did not fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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