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TMI Blog1976 (9) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... ax by the Superintendent of Taxes, Jorhat, under section 9(4) of the Act. The aggregate sale price was determined at Rs. 1,10,000 and the net turnover was determined at Rs. 1,02,806 and the tax assessed was Rs. 7,196.42 at 7 per cent. The petitioner filed an appeal against the said assessment order dated 25th April, 1970, before the Assistant Commissioner of Taxes, Jorhat. By his appellate order dated 17th April, 1971, the Assistant Commissioner of Taxes held that the estimate of total turnover was high and, accordingly, the Assistant Commissioner of Taxes estimated the total turnover of the dealer at Rs. 95,000 and the assessment of tax was reduced to that extent. Against the said order dated 17th April, 1971, passed by the Assistant Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 I.T.R. 272., Puranmal Radhakishan and Company v. Commissioner of Income-tax, Bombay[1957] 31 I.T.R. 294., Ramaswamy Iyengar v. Commissioner of Income-tax, Madras[1960] 40 I.T.R. 377., Pathikonda Balasubba Setty (deceased) v. Commissioner of Income-tax, Mysore[1967] 65 I.T.R. 252., Hukumchand Mills Ltd. v. Commissioner of Income-tax, Central Bombay[1967] 63 I.T.R. 232 (S.C.); A.I.R. 1967 S.C. 455. and Commissioner of Income-tax, Madras v. Chenniappa Mudaliar[1969] 74 I.T.R. 41 (S.C.)., this court has observed in the Assam Co-operative Apex Bank Ltd.[1978] 112 I.T.R. 257. as follows: "On consideration of the above decisions of the different High Courts and the Supreme Court, the legal position that emerges is as follows: If the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) The appellate authority shall fix a day and place for hearing of the appeal, and may from time to time adjourn the hearing and make, or cause to be made, such further enquiry as may be deemed necessary. (4) In disposing of an appeal under sub-section (1), the appellate authority may- (a) confirm, reduce, enhance or annul the assessment, or (b) set aside the assessment and direct a fresh assessment after such enquiry as may be ordered, or (c) confirm, reduce or annul the order of penalty." The prescribed appellate authority is the Assistant Commissioner of Taxes. The corresponding provision of appeal under the Income-tax Act, 1961, is found in section 246(c). The right of appeal under the Assam Finance (Sales Tax) Act as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 251 of the Income-tax Act the power of enhancement of the assessment has been conferred on the Appellate Assistant Commissioner. Sub-section (1) of section 254 of the Income-tax Act, 1961, reads as follows: "The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit." Comparing the provisions of sub-section (4) of section 20A of the Assam Finance (Sales Tax) Act and the provisions of sub-section (1) of section 254 of the Income-tax Act, it is found that in disposing of an appeal, the Board has to give the dealer only an opportunity of being heard and then it has to pass such orders thereon as it thinks fit and it has the duty to communicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authority from whose order the appeal has been preferred before the Board. Under sub-section (4) of section 20A of the Assam Finance (Sales Tax) Act the Board has no power for passing an order enhancing the assessment but it has the jurisdiction to remand the appeal to the Assistant Commissioner of Taxes, if it so decides on the facts and in the circumstances of a particular case. In the instant case, the Assistant Commissioner of Taxes in his appellate order has observed as follows: "In the instant period the total turnover has been determined at Rs. 1,10,000 and the net turnover at Rs. 1,02,806 only. No material or evidence is there on record in support of high estimate made by the learned Superintendent of Taxes. No report or r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order the Board has set aside the order of the Assistant Commissioner of Taxes and upheld the order of assessment passed by the Superintendent of Taxes. But by doing that the Board has purported to enhance the tax liability of the dealer which, as we have held, the Board has no jurisdiction to do. That being the position, in the instant case, if the Board deemed it necessary, it could have remanded the appeal to the Assistant Commissioner of Taxes for disposal of the appeal in accordance with law drawing particular attention of the Assistant Commissioner of Taxes to the provisions of sub-section (3) and sub-section (4) of section 19 of the Assam Finance (Sales Tax) Act, 1956. In the result, we quash the impugned order dated 10t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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