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TMI Blog1976 (3) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing authority, but did not raise any dispute relating to the turnover of Rs. 24,54,389.12, which represented certain transactions in the course of import. When the appeal was pending before the Appellate Assistant Commissioner, the Supreme Court rendered the decision in Khosla Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes(1) on 18th January, 1966, and this decision was reported in the Law Journals on 1st May, 1966. Thereafter, after collecting materials relating to the transactions, the assessees filed a petition on 27th June, 1966, for permission to raise additional grounds in respect of the turnover of Rs. 24,54,389.12 claiming that this turnover which was not disputed by them before the assessing authority and not included in the grounds of appeal represented the sales in the course of import on the basis of the decision in Khosla Co. (P) Ltd. v. Deputy Commissioner of Commercial Taxes(1), and that, therefore, they are not liable to pay any tax on the same. The Appellate Assistant Commissioner dismissed this petition and proceeded to consider only the turnover that was disputed in the grounds as originally filed. It may be mentioned that the Appellate Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided under section 31 of the Tamil Nadu General Sales Tax Act, 1959. That provision reads as follows: "Section 31. (1) Any person objecting to an order passed by the appropriate authority under section 12, section 14, section 15, sub-sections (1) and (2) of section 16, section 18, section 23, section 27, sub-section (4) of section 41, or sub-section (3) of section 42, may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Assistant Commissioner: Provided that the Appellate Assistant Commissioner may admit an appeal presented after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period: Provided further that in the case of an order under section 12, section 14, section 15 or sub-sections (1) and (2) of section 16, no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable, as the case may be. (2) The appeal shall be in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner is entitled to confirm, reduce, enhance or annul an assessment itself, he has the jurisdiction to permit additional grounds to be raised even in respect of a turnover which was not originally disputed by the assessees before the assessing authority or in the ground of appeal filed by the assessee. It may be mentioned that while the assessee is given a right of appeal under section 31 of the Tamil Nadu General Sales Tax Act, 1959, to the Appellate Assistant Commissioner, and a further right of appeal against the order of the Appellate Assistant Commissioner to the Tribunal under section 36, the department has no such right of appeal either to the Appellate Assistant Commissioner or from his order to the Tribunal. But a power is given to the Deputy Commissioner under section 32 of the Tamil Nadu General Sales Tax Act, 1959, to suo motu revise the assessment order in respect of which an appeal had not been preferred to the Appellate Assistant Commissioner. In the case of an order made by the Appellate Assistant Commissioner, a similar power of suo motu revision is given to the Board of Revenue under section 34 of the Tamil Nadu General Sales Tax Act. Only a ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a turnover not included in the original grounds of appeal. We are of the view that the learned counsel for the revenue is well-founded in his contention. Section 31 of the Tamil Nadu General Sales Tax Act, 1959, does not contemplate the filing of two appeals. In fact, we are of the view that even within the prescribed time an assessee could not prefer separate appeals in respect of each item of disputed turnover. If the provisions were to be construed as concerning a right to prefer more than one appeal, it will lead to certain anomalous results. One of the appeals may be disposed of separately in which case the order of the original authority would merge with the order of the appellate authority and the appellate authority will not be entitled to deal with the other appeal filed by the assessee. Similarly, if an assessee could raise additional grounds relating to a different turnover at any time, he must be able to raise it or file an independent appeal even after the disposal of the appeal, which could not have been contemplated under section 31, clause (3), of the Tamil Nadu General Sales Tax Act, 1959. Thus, when an assessee goes up in appeal though he exposes the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ints raised and not an enlargement of the scope of the revision petition. It is impossible to view a memorandum of revision petition as a mere structural framework, elastic and expansive, capable of allowing the petitioner to raise questions of law relating to aspects not comprised in the original petition and conveniently discovered before the revision petition is actually disposed of. We can understand and appreciate a position in which a particular turnover of the assessee manifests several questions of law. For example, an assessee might contend that purchase of cotton was exempt from tax as it was in the course of import and he might also contend that even if it was a local purchase he was not the first purchaser in the State liable to tax. In such a case, if in the original memorandum of revision petition he has raised only one question, namely, that it was an import sale within the constitutional ban of article 286 of the Constitution, it may perhaps be legitimate to seek permission to raise a further question of law in regard to the same matter, namely, that he is not the first purchaser. Whatever that be, we are unable to hold that in a case where there are different turno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute at the time when the assessment order was made, he could not be prevented from filing an appeal if he considers that either his return as taxable turnover was a mistake or that the assessing authority had made a mistake in assessing the turnover though he did not object. The assessees are taxed and liable to be taxed on the sales only by virtue of the provisions of and under the Act and not by reason of or under the return. Therefore, even if an assessee had not disputed before the assessing authority he could raise that dispute for the first time in the appeal before the Appellate Assistant Commissioner. But that does not mean that when he had failed to raise that dispute originally in the grounds of appeal he could raise the same at any time before the appeal was disposed of by the Appellate Assistant Commissioner. We may also mention that clause (5) of section 250 of the Income-tax Act, 1961, permits the Appellate Assistant Commissioner to allow the appellant to go into any ground of appeal not specified in the grounds of appeal, if he is satisfied that the omission of that ground from the form of appeal was not wilful or unreasonable. The learned counsel for the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal pertinently pointed out that, even though the judgment of the Supreme Court in Khosla Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes[1966] 17 S.T.C. 473 (S.C.).was rendered in January, 1966, the assessee did not take any steps to file additional grounds of appeal before the appellate authority and call upon it to decide whether the said sum of Rs. 30,00,000 and odd represented sales in the course of import. (2) If really the assessee was aggrieved against the assessment in respect of that turnover it should have included that turnover also in his appeal before the appellate authority, or should have taken the permission of the Appellate Assistant Commissioner to expand the appeal by including the disputed turnover of Rs. 30,00,000 and odd. But no such step was taken." These observations were relied on by the learned counsel for the assessees as if this court had expressed a view that the Appellate Assistant Commissioner had the jurisdiction to include the turnover which was not originally disputed in the memorandum of grounds and enlarged the appeal itself. We are unable to agree with this contention of the learned counsel. Those observations were made as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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