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TMI Blog1987 (5) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... n that basis? (2) Is not the decision of the Appellate Tribunal against the provisions of section 6(a) of the Central Sales Tax Act and also against the decision of this Honourable Court reported in [1980] 46 STC 79 (Deputy Commissioner of Sales Tax v. McDowell & Co. Limited)? (3) Are the reasonings, findings and conclusions of the Appellate Tribunal correct in law?" 2. The respondent-assessee is an inter-State dealer in hill produce. The consignment sale to the tune of Rs. 15,491.91 was treated as interState sale by the assessing authority as the said sale was not covered by either form F or form C declaration. Accordingly tax on the said sale was levied at the rate of 10 per cent. The Appellate Assistant Commissioner, before whom the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, since he has acted within the powers vested in him, we do not find anything wrong on his part in accepting the same." 3.. The above questions arise out of this order of the Appellate Tribunal. 4.. The only point pressed before us by the learned counsel for the Revenue is the one covered by the question, whether the Appellate Assistant Commissioner was justified in accepting forms F and C in evidence at the appellate stage and granting reliefs based on the said documents. In answer, the learned Government Pleader, Sri T. Karunakaran Nambiar, submits that the appellate authority has no jurisdiction to entertain the "forms" at the appellate stage because under rule 6(1B) of the Central Sales Tax (Kerala) Rules such documents were require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion because the assessee therein had conceded the point. The decision should therefore be understood in the context of the relevant facts. 5.. Any person objecting to an order affecting him passed by the assessing authority, has a right to file an appeal before the Appellate Assistant Commissioner under section 34 of the Kerala General Sales Tax Act, for short the "KGST Act". Sub-section (3) of the said section provides that in disposing of an appeal, the Appellate Assistant Commissioner may, after giving the appellant a reasonable opportunity of being heard, confirm, reduce, enhance, annul or set aside the assessment and direct the assessing authority to make a fresh assessment after such further enquiry as may be directed; or the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate authority has no jurisdiction to receive the documents in evidence, in the course of the hearing of the appeal. It should in this connection be borne in mind that the appellate authority has the power even to enhance the assessment although the appeal is at the assessee's instance. These are some of the special and exceptional attributes of the jurisdiction of an appellate authority under fiscal enactments. Taking note of such special attributes, courts have consistently been declaring that an appellate authority under a fiscal enactment is in no way different, functionally and substantially, from the assessing authority itself. 6.. Another approach to the point is this. We have to consider in this connection the scope and ambit of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a power on the said authority. The answer is simple. When the power is there and the facts established in a given case, warrant its exercise, the implementation must be done as a matter of course, on the doctrine of implied or ancillary power. In appropriate cases therefore the assessing authority can take the essential corrective action by invoking its power of rectification or reopening. Such a view has been taken by the Madras High Court (see State of Tamil Nadu v. Arulmurugan and Co. [1982] 51 STC 381 (FB) at 395). With respect we concur with this view. 7.. It is true that this power under section 6A to receive the documents mentioned therein, beyond the period prescribed under rule 6(1B) of the Central Sales Tax (Kerala) Rules, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 6A(1) and determine whether the circumstances of the case warrant reception of the documents mentioned therein, in evidence at the appellate stage and grant appropriate reliefs to the assessee who has filed the appeal. In this connection it is profitable to note that section 6A(1) does not import any limitation on the power of the Appellate Assistant Commissioner under section 34 which gives the Appellate Assistant Commissioner the power to revise every process which leads to the ultimate computation or assessment. "The Appellate Assistant Commissioner has thus the power to correct the error in the way most suitable in the circumstances of the case", provided he acts within the frame work of section 34 of the Act. He can correct such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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