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TMI Blog1976 (3) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... also not in the course of their business and that, therefore, the turnover representing the sales of iron scraps had to be excluded from the taxable turnover. But the Appellate Assistant Commissioner rejected the claim relating to the turnovers representing sales returns and bonus discount granted to the customers. The assessee preferred two appeals to the Tribunal against the order of the Appellate Assistant Commissioner in so far as it rejected the turnover relating to sales returns and special bonus discount. The department filed an enhancement petition praying the Tribunal to bring to tax the turnover representing iron scraps which were wrongly excluded by the Appellate Assistant Commissioner. The Tribunal confirmed the order of the Appellate Assistant Commissioner and dismissed both the appeal and the enhancement petition. The State has filed these revision petitions so far as it related to the enhancement petition. In view of the decision of the Supreme Court in State of Tamil Nadu v. Burmah Shell Co. Ltd.[1973] 31 S.T.C. 426 (S.C.). , the order of the Tribunal rejecting the enhancement petition on the ground that the assessees were not dealers in iron scraps, cannot be uph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel also relied on an observation of the Supreme Court in State of Madras v. Lateef Hamid Co.[1971] 28 S.T.C. 690 (S.C.). Before we consider these arguments and the decision, it is necessary for us to refer to the scheme of the Act relating to assessments and appeals therefrom. Assessing authority is defined in section 2(c) as any person authorised by the Government or by any authority empowered by them to make any assessment under this Act. Appellate Assistant Commissioner and Appellate Tribunal are defined in sections 2(a) and 2(b) as meaning the person appointed as an Appellate Assistant Commissioner under section 28 and the Tribunal appointed under section 30 respectively. The assessment order is made under section 12. If the assessment order is on the basis of the return submitted, the assessment order is made under section 12(1). If no return is submitted or if the return submitted was considered by the assessing authority as incomplete or incorrect, a best judgment assessment is provided under section 12(2). In cases falling under clause (2) of section 12, the assessing authority also has jurisdiction to levy penalty under section 12(3). Where a turnover of a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment order becomes the subject-matter of consideration by the Tribunal, thereafter the revenue has no right to revise the order except to ask for a review of the Tribunal's order or to take it in revision to the High Court. Though sections 11 and 12A of the Madras General Sales Tax Act, 1939, provided for appeals "by an assessee", sections 31 and 36 refer to an appeal by "any person" objecting to the order. That is because the appeal provided under section 31 is not only against the assessment orders under sections 12, 14, 15 and 16(1) and (2) but also against orders under sections 22(2), 23, 27 and 42. As may be seen from those sections, they relate to levy of penalties on persons who are not assessees. Section 22(2) enables the authorities to levy penalty on any person who is not a registered dealer if he collects any amount by way of tax. Section 23 makes the person purchasing the goods to give a declaration that it was intended for use by him as component part of any other goods mentioned in the First Schedule. If he fails to make use of the same for the declared purpose, he is liable for the levy of penalty. Section 27 provided for the recovery of any amount due from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It now remains to consider the decision of the Supreme Court in State of Madras v. Lateef Hamid Co.[1971] 28 S.T.C. 690 (S.C.)., which was referred to by the learned counsel for the assessee. The question for consideration in that decision was whether the Appellate Assistant Commissioner was competent to enhance the assessment of an assessee in a case where the assessment related to 1958-59, the liability in respect of which was under the Madras General Sales Tax Act, 1939. But the order of assessment and the appeal to the Appellate Assistant Commissioner were made subsequent to the passing of the Tamil Nadu General Sales Tax Act, 1959. The Supreme Court held that under the old Act, the Commercial Tax Officer had both the powers of the appellate authority as well as the special powers of suo motu revision. By the exercise of these two powers, he could have confirmed, altered, amended or enhanced the assessment made. The power conferred on the Appellate Assistant Commissioner under the 1959 Act was wider than that of the Commercial Tax Officer under the 1939 Act and that, therefore, the 1959 Act does not adversely affect in any manner the right of appeal of an assessee under the 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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