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TMI Blog1996 (8) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as in the companion special leave petitions; while in Civil Appeal No. 3442 of 1983 the State of Tamil Nadu seeks to challenge the decision of Full Bench of the same High Court concurring with the decisions of the Division Benches of the High Court taking the same view. The short question which is posed for our consideration by the appellant - State of Tamil Nadu in these proceedings is as to whether the Board of Revenue functioning under the provisions of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as `the Act') can revise in exercise of its suo motu revisional jurisdiction that part of the order of the Appellate Assistant Commissioner which is against the Revenue when the other part of this very order of the Appellate Assistant Commissioner against the assessee is made subject-matter of an appeal before the Sales Tax Appellate Tribunal functioning under the same Act. In the impugned judgments the High Court has taken the view that once the assessee has carried the matter in appeal being aggrieved by that part of the order of the Appellate Assistant Commissioner which is against him, the entire order comes within the purview of the Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before it, the field of controversy would be occupied by the Appellate Tribunal's jurisdiction and consequently the Board of Revenue would lose its jurisdiction to trench upon that field of controversy between the parties. It was, therefore, contended that the High Court was right in taking the view that the impugned orders of the Board of Revenue under Section 34 of the Act in these proceedings were incompetent and accordingly they were rightly set aside by the High Court. 4. Having given our anxious consideration to these rival contentions we find that on the scheme of the relevant provisions of the Act to which we will presently refer no exception can be taken to the view which appealed to different Division Benches of the High Court as well as to the Full Bench of the High Court and these appeals and special leave petitions are, therefore, liable to fail. The controversy before us is required to be resolved in the light of the statutory settings projected by two relevant Sections of the Act. They are Section 34 dealing with special powers of the Board of Revenue and Section 36 dealing with powers of the Appellate Tribunal. It will be profitable to extract them in extenso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing authority shall have the right to be heard either in person or by a representative; Provided further that, if the appeal involves a question of law on which the Appellate Tribunal has previously given its decision in another appeal and either a revision petition in the High Court against such decision or an appeal in the Supreme Court against the order of the High Court thereon is pending, the Appellate Tribunal may defer the hearing of the appeal before it, till such revision petition in the High Court or the appeal in the Supreme Court is disposed of." A mere look at Section 34 sub-section (2)(a) and (b) shows that the Board of Revenue can exercise its suo motu powers to call for and examine the orders passed by the lower authorities provided such orders are not made subject-matter of appeal before the Tribunal or revision before the High Court. In fact, Section 34(2)(a) imposes a temporary bar on the powers of the Board to call for the record of any appellate order passed by the authorities below if time for preferring an appeal before the Tribunal has not expired. This is a limited bar. During the non-expiry of that time to file appeal before the Tribunal the Board can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o exercise its suo motu revisional powers against such an order, especially when the assessee prefers to challenge it in appeal before the Tribunal. But a possibility of Board and Tribunal being simultaneously approached by the Revenue and the assessee would arise if at all the order of the appellate authority is partly in favour of and partly against the assessee. However, even in such a case the fact that such order is partly against the assessee and partly in his favour will make no difference as the order as a whole would be available for scrutiny before the Tribunal or before the High Court in revision. Consequently the bar of jurisdiction under Section 34(2)(b) would operate against the Board of Revenue qua such an order. 5. When we turn to Section 36 the same conclusion flows from the various provisions of the said Section. It was vehemently submitted by learned counsel for the appellant that in an appeal filed by the assessee against that part of the order of the Appellate Assistant Commissioner which is against him, the jurisdiction of the Appellate Tribunal will be invoked for scrutinising only that part of the order of the Appellate Assistant Commissioner which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal and the entire controversy qua that order vis-a-vis both the contesting parties, namely, the assessee on the one hand and the Revenue on the other comes under the focus of scrutiny of the Tribunal. Once the entire appellate order being partly in favour and partly against the assessee becomes subject to the jurisdiction of the Appellate Tribunal, the bar of Section 34(2)(b) against the revisional powers of the Board of Revenue would operate in its full swing and such an order of the Appellate Assistant Commissioner which is pending scrutiny before the Appellate Tribunal will go out of the ken of revisional jurisdiction conferred on the Board of Revenue under Section 34. We entirely concur with the view of the High Court that piecemeal scrutiny of the order of the Appellate Assistant Commissioner partly by the Appellate Tribunal at the instance of the dissatisfied assessee and partly by the Board of Revenue in exercise of its suo motu revisional powers against other part of the same order in favour of the assessee is contra-indicated by the aforesaid relevant provisions of the Act. It must, therefore, be held that once the order of Appellate Assistant Commissioner is m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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