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TMI Blog1991 (4) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellate authority, after considering the various contentions raised, while sustaining the addition and repelling the challenge to the turnover assessed by the best judgment assessment, cancelled the penalty levied under section 12(3) of the Act. 2.. Thereafter, the petitioner filed a further appeal before the Sales Tax Appellate Tribunal and the Tribunal, though, repelled the challenge to the best judgment assessment made, reduced the turnover by Rs. 1,23,224 by adopting an average rate of Rs. 2 per kilogram as against Rs. 3 per kilogram adopted by the assessing officer in quantifying the turnover said to have been suppressed. In respect of a further submission made by the assessee that sodium nitrate sold by them falls under item 21(5) of the First Schedule and, therefore, was liable to tax at 31/2 per cent instead of 8 per cent as adopted by the assessing authority, the Tribunal rejected the claim on the ground that such a point was not raised before the Appellate Assistant Commissioner who is the first appellate authority and that having regard to the decision of this Court reported in [1980] 46 STC 341 [Deputy Commissioner (C.T.) v. Govindaraju Chattier] the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract or not. Later, at the time of hearing of the appeal, the assessee filed an application for leave to file the additional grounds that even if the turnover is held to represent the contracts of sale, the assessee having procured C forms from the purchasing dealers, he was entitled to the benefit of the concessional rate of tax. The Tribunal declined to grant leave to raise the additional grounds on the ground that it was filed beyond the time fixed for filing an appeal. When the matter came up before this Court, the view expressed was that the limitation prescribed under section 36 of the Act was only for filing appeals and it is not as if the assessee sought to bring a new or fresh turnover for attack by raising an additional ground. It was further held that in view of the fact that the assessee only sought to raise an additional ground in respect of a turnover which has already been questioned by him, this Court considered that the additional ground should have been allowed to be raised, and relegated the matter to the Tribunal for consideration afresh of the claim based on the additional ground based on the production of the C forms. 6.. In Deputy Commissioner (C.T.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . and P. Shanmugavel Nadar [1977] 39 STC 391 and a Full Bench judgment of the Andhra Pradesh High Court reported as State of Andhra Pradesh v. Sri Venkata Rama Lingeshwara Rice Mill [1977] 39 STC 57 to come to such a conclusion. Balasubrahmanyan, J., who was a party to the said Bench, differed from the view taken by Sethuraman, J., and came to the conclusion that the Tribunal was competent to hear and decide the objection though raised for the first time before it. The matter was, therefore, referred to for decision by another learned Judge of this Court and thereupon the matter came up for hearing before Ramaprasada Rao, C.J., who concurred with the view expressed by Sethuraman, J., and differed from the view expressed by Balasubrahmanyan, J. Consequently, it was categorically laid down in the said decision that the assessee was not justified in raising a dispute for the first time before the Tribunal without raising such a dispute before the Appellate Assistant Commissioner and the Tribunal was held to be in error in deciding such an issue. It was also held therein that the maintainability of an appeal is one thing and moulding the relief in an appeal in accordance with the super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Sales Tax (Registration and Turnover) Rules, 1957 and the power of the appellate authority to do in an appeal what the original authority itself could have done. None of the earlier judgments of this Court either reported in [1980] 46 STC 341 [Deputy Commissioner (C.T.) v. Govindaraju Chattier] or those considered and followed in the said judgment, have been either referred to or considered. Apparently, that was on account of the fact that an issue of the nature and in the form it arose before the Court which decided the case reported in [1980] 46 STC 341 (Mad.) [Deputy Commissioner (C.T.) v. Govindaraju Chattiar] or the issue in the manner it is now raised before us, was never in the forefront or projected for consideration, except making a passing reference to section 36 of the Act and an observation that the Tribunal has the power under section 36 to set aside an assessment either in whole or in part and direct the assessing authority to redo the assessment. 8.. In State of Tamil Nadu v. Pyarelal Malhotra [1984] 57 STC 215 (Mad.), the assessee purchased scrap locally, converted the same into M.S. rods and then sold the same locally. The local sales of M.S. rods were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d its liability before the appellate authority, the appeals were rejected and on further appeals before the Tribunal, it was held that freight charges are liable to sales tax and dismissed the appeals. So far as the appeals preferred by the Company relating to the surcharge were concerned, the assessee moved separate applications to have the appeal grounds amended to enable them to raise additional grounds. The move of the assessee was opposed by the State on the ground that as the company had not raised a dispute before the authorities below as regards the higher figures sought to be brought in by means of an amendment application, it would not be open to the assessee to raise additional grounds in that regard or even pray for an amendment. The Tribunal was of the opinion that its jurisdiction was confined only to the subject-matter of the dispute before the first appellate authority and as the items covered by the proposed amendment and additional grounds of appeal were not so disputed by the assessee before the assessing authority or the first appellate authority, they could not be brought before the Tribunal properly as the subject-matter of the appeals either at the time of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Tax Act. In the said case, the assessee was a dealer in hides and skins. They claimed exemption in respect of purchase turnover of raw hides and skins to the tune of Rs. 8,97,014.34 and the same was rejected. The assessee appealed against the said judgment. In the memorandum of grounds of appeal, the assessee did not question the inclusion in the assessment of the purchase turnover referred to above. However, subsequently, the assessee filed additional grounds before the Appellate Assistant Commissioner objecting to the inclusion of the said turnover for levy of tax. When the appeal was disposed of by the appellate authority, it considered and decided only the ground as originally raised and completely overlooked the grounds raised by way of additional grounds in respect of the turnover referred to above. The matter was taken up on further appeal before the Tribunal and the Tribunal refused to entertain the grounds. In the view of the Tribunal, the additional ground was in the nature of a supplemental appeal and, therefore, was incompetent besides being out of time. It is in those circumstances, the matter came up before this Court and the matter was placed further before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations of income and additions made and even in an appeal filed the assessee did not raise the issue before the first appellate authority. When a further appeal was filed before the Tribunal, the same grounds were raised but at the time of hearing of the appeal, an application was filed to raise an additional ground relating to the provisions made towards gratuity liability also claiming deduction. When an objection was raised, the Tribunal overruled the same and viewing the matter as one within its discretion, allowed the assessee to raise the new grounds, but sent the case back to the Income-tax Officer for going into the factual details and other considerations on the new point. The reference, therefore, to this Court was at the instance of the department. This Court held that the assessee was not precluded from raising a new ground and the Income-tax Appellate Tribunal was not precluded from examining and determining that issue merely because it was not put forward at the earlier stages during assessment and in the first appeal. The court followed and applied the ratio of the decisions of the Supreme Court in [1967] 66 ITR 710 (Commissioner of Income-tax v. Mahalakshmi Textile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e overlooked that the issue in the above two Full Bench judgments never directly arose in the form in which it arose in [1980] 46 STC 341 (Mad.) [Deputy Commissioner (C.T.) v. Govindaraju Chettiar] or is now being raised before us. There was no occasion for the court therein to consider the consequence of an appeal filed before the Tribunal raising a new ground in respect of a liability never agitated before the hierarchy below, be it in respect of a part of a turnover or its other liability. As a matter of fact, in State of Madras v. Voltas Ltd., Madras: No. 2 [1963] 14 STC 861, a Division Bench of this Court has held that it is not open to a revision petitioner before this Court under section 38 of the Tamil Nadu General Sales Tax Act, 1959, to seek permission to raise questions of law relating to a turnover not comprised in the petition by filing a miscellaneous petition after the period of limitation for filing the revision expired and that if such a plea or petition is only an application for leave to raise additional grounds, there can be no objection. The court in that case further held that once a revision petition is filed and that embraced only some of the points decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hettiar]. The mere fact that a special leave petition filed before the Supreme Court has been rejected and leave to appeal was not granted, does not have the effect of elevating the decision of this Court to the status of a decision of the Supreme Court or a declaration of law by the Supreme Court itself within the meaning of article 141 of the Constitution of India. We are of the view that having regard to the fact that the decision in [1986] 63 STC 63 (Mad.) (Associated Cement Companies Ltd. v. State of Tamil Nadu) was rendered without reference to the several decisions of this Court striking a different note rendered by the Benches of co-ordinate jurisdiction, it cannot be considered to be a precedent authoritatively binding on us and the same is only a judgment rendered per incuriam, and as such has no authority of a binding precedent. [Vide Syed Mohideen v. Govt. of Tamil Nadu AIR 1986 Mad. 188 [FB]; (1985) Writ LR 1 (FB)]. 14.. We are of the view that the decision reported in [1980] 46 STC 341 (Mad.) [Deputy Commissioner (C.T.) v. Govindaraju Chettiar] has considered the questions at length and with reference to all the relevant earlier case laws on the subject and lays dow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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