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TMI Blog1989 (8) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Act, 1956. The Assessing Authority vide its order dated 20th January, 1976, framed assessment for the year 1968-69. It declined to adjust a sum of Rs. 95,729.38 on account of credit notes; rejected C forms involving tax of Rs. 32,333.25 and also added a tax of Rs. 3,495.18 on account of insurance charges though the respondent had claimed that they were not assessable to tax. The assessee went up in appeal under section 39 of the Act read with section 9(2) of the Central Sales Tax Act, 1956. The respondent urged before the Deputy Excise and Taxation Commissioner that the Assessing Authority had erred in not adjusting Rs. 95,729.38 on account of credit notes; in rejecting and not admitting C forms involving tax of Rs. 32,333.25 and in imposing a tax of Rs. 3,495.18 on insurance charges which were not taxable. No other point was urged before the appellate authority on behalf of the respondent. It may be mentioned here that the Assessing Authority had allowed deductions from the taxable turnover to the assessee for certain amounts which were claimed to be sales in the course of exports out of the territory of India. The department had not filed any appeal or revision against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y had to pass, on an appeal, such orders as it may deem fit. However, it did not authorise the appellate authority to raise suo motu issues which had not been taken up in the grounds of appeal under section 39. It held that the order of remand was illegal and quashed the same. Excise and Taxation Commissioner, Haryana filed an application under section 42(1) of the Act for reference. It is on this application that the question extracted in the opening part of the judgment has come to be referred for opinion of this Court. It will be appropriate to read the relevant provisions of sections 39 and 40 of the Act which provide for appeal and revision. "39. Appeal.-(1) An appeal from every original order, including an order under section 40, passed under this Act or the Rules made thereunder shall lie,- (a) if the order is made by an Assessing Authority, officer-in-charge of a check-post or a barrier or an officer below the rank of a Deputy Excise and Taxation Commissioner, to the Deputy Excise and Taxation Commissioner or such other officer as the State Government may, by notification, appoint; (b) if the order is made by the Deputy Excise and Taxation Commissioner, to the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder is made by the Deputy Excise and Taxation Commissioner, to the Commissioner and if the order is made by the Commissioner, to the Tribunal. It is also clear from the language of section 39 and has indeed been conceded by the learned counsel for the parties that both the assessee and the department can file appeals against the orders by which they are aggrieved. On an appeal filed, the appellate authority has been invested with powers to pass such orders as it may deem to be just and proper including an order enhancing the amount of tax or penalty or interest or all. Section 39 has been drafted on the pattern of various sections in different statutes conferring powers of appeal. In substance, it conforms to section 96 of the Code of Civil Procedure. Wide powers have been given to the appellate authority to examine the impugned orders and to judge and determine their legality and propriety. Any party aggrieved by any order passed by an authority exercising jurisdiction under the Act or the Rules, may file an appeal against that order raising its grievances and pleas challenging the legality and propriety of the order. Whatever pleas are raised by a party in its appeal, are exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d framed the assessment. On appeal preferred by the assessee, the Appellate Assistant Commissioner did not accept the plea raised by the assessee that the account books had been wrongly rejected. However, the second contention of the assessee that the addition of 10 per cent to the taxable turnover was excessive, prevailed and this addition was reduced to 5 per cent. Still feeling dissatisfied, the assessee filed an appeal which was disposed of by the Tribunal. The only challenge of the assessee was directed against the addition of 5 per cent to the taxable turnover. The Revenue had not filed any appeal or cross-objections. The Appellate Tribunal came to the conclusion that the assessing authority and the Appellate Assistant Commissioner had no reason to make addition at any figure less than Rs. 80,218.22 as was seen from the detected rough note-book. The Tribunal, invoking the powers under section 39(4) of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "the 1963 Act"), issued notice to the assessee to show cause against proposed enhancement of the turnover and after hearing the objections of the assessee, directed an addition of a sum of Rs. 80,218.22 to the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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