9911796707
TMI Blog1987 (4) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee went up in second appeal to the Tribunal. The latter took the view that the A.C. (J.) was not right in remanding the case for imposing a tax at a higher rate on the turnover of cashmilon, as he himself was fully competent to assess the turnover of cashmilon at the correct rate of tax. The Tribunal also held that under section 10(5) of the U.P. Sales Tax Act, 1948 (for short the Act, 1948)........... the same could be done at the Tribunal stage". To take this view, the Tribunal relied on Raj Kumar Kotwaj v. Commissioner of Sales Tax, U.P. [1977] 40 STC 141 (All.); 1976 UPTC 742 and on two more authorities. The Tribunal finally held: "In the aforesaid background, I hold it to be proper to assess the turnover of imported cashmilon at 7 per cent in view of ruling of Honourable High Court in the case of Jaimets Pvt. Ltd. v. State of U.P. [1984] 55 STC 119 (All.); 1984 UPTC 67." This is how the turnover of cashmilon was taxed by the Tribunal at the rate of 7 per cent while that was taxed by the S.T.O. only at the rate of 2 per cent. The contention of Sri Rajesh Kumar, learned counsel for the assessee, is that imposition of tax at the rate of 2 per cent on the turnover o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding Counsel that though there was no appeal on the point of rate of tax leviable on the turnover of cashmilon, but the appellate authority was competent to touch upon that part of the assessment. The question for consideration is whether an appellate authority acquires jurisdiction for reducing or enhancing the amount of assessment which is not the subject-matter of appeal or whether the appellate authority can interfere with that part of the assessment against which no appeal is filed. This question is not res integra as that has already been decided by this Court in the case of Madan Studio v. Assistant Commissioner (judicial) IV, Sales Tax [1975] 36 STC 282; 1975 UPTC 58. In the said case the S.T.O. accepted the assessee's contention that the turnover of photographs was exempted from tax but he rejected the account books of the assessee in regard to the turnover of photo goods and estimated them. The assessee challenged the enhancement of the turnover in appeal. During appeal, the Revenue argued that the turnover of photographs was liable to tax and had been wrongly exempted by the S.T.O. Thereupon the A.C. (J.) issued a notice to the assessee to show cause as to why the tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58 accepted the contention of the petitioner and held that the turnover of cotton was specifically not held liable to tax for the assessment year 1964-65 by the appellate authority and that finding in the first appellate order had become final, and, therefore, it cannot hence be said that any tax under the Act on the turnover of cotton for the assessment year 1964-65 was due from the assessee. It was further held that the fact that the High Court may have held that such a turnover was taxable has no material bearing, when the finding given by the appellate authority inter-parties had become final. Learned Standing Counsel argued that both the authorities relied upon by the assessee are of no use, as they were based on the pre-amended sub-section (3) of section 9 of the Act, 1948, and that the amended sub-section (3) of section 9 widened the powers of the appellate authority. Let us have a look at the preamended sub-section (3) and the amended sub-section (3) of section 9 of the Act, 1948. Unamended sub-section (3) of section 9 is as follows: "(3) The appellate authority may, after giving the appellant and the Commissioner of Sales Tax a reasonable opportunity of being heard,- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-clause (ii) confers a jurisdiction on the appellate authority to travel beyond the grounds of appeal and interfere with any part of the assessment against which no appeal has been preferred by the assessee. I am not at all persuaded by this argument of the Revenue. The part of the assessment against which no appeal is preferred, becomes final. Where an assessment order is partly challenged in appeal, then it cannot be said that the whole assessment becomes the subject-matter of the appeal. When an assessment order is partly accepted and partly challenged in appeal by an assessee, then only that part of the order which is challenged in appeal, becomes the subjectmatter of appeal. The question is what is the position of the part of the assessment order against which no appeal is filed and which is accepted by the assessee. In my opinion such part of the assessment having become final, cannot be interfered with by the appellate authority suo motu. After the assessment having become final, if the assessing authority has reason to believe that the whole or any part of the turnover of a dealer for any assessment year has escaped assessment to tax or has been under-assessed or has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The matter can be looked at from another angle also. Suo motu jurisdiction can be exercised only by the Commissioner under section 10-B. The result of acceptance of the contention of the Revenue would be that the appellate authority may also exercise revisional jurisdiction suo motu which is now conferred only on the Commissioner under section 10-B, simultaneously. Then this will cause a great confusion and may some times result into conflicting orders of the Commissioner as well as the appellate authority. The interpretation leading to confusion or conflict must always be avoided, and the interpretation which conforms to the well-settled principles that the part of the assessment which is not appealed against, becomes final and closed, unless is validly reopened by a competent authority or is altered in the revisional jurisdiction, must be accepted. This being so, the decision in the case of Madan Studio [1975] 36 STC 282 (All.); 1975 UPTC 58 still holds good and the contention of the Revenue that the amended sub-section (3) of section 9 has widened the power of the appellate authority has to be rejected. There is one more reason to reject the contention of the Revenue that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
