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TMI Blog1992 (9) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... ged in the business of manufacturing and selling conveyors and elevators and other machines in the township of Vallabh Vidyanagar. The applicant-company also undertakes job-work and is a dealer registered under the Gujarat Sales Tax Act, 1969 (hereinafter referred to as "the Act"). In the year 1974 the applicant sold some of its manufactured goods to the Gujarat Electricity Board free of tax against certificate in form C and to new industry against certificate in form "Z" without charging any tax on such sales. The applicant is a holder of recognition granted under section 32 of the Act and as such it purchased certain goods free of tax on the strength of certificate in form 19 and used some of them in the manufacture of goods so sold by it to the Gujarat Electricity Board and new industry. In using the goods so purchased against certificates in form 19 in such a manner the applicant had committed breach of recitals of the said certificates in form 19 and therefore, it had exposed itself to the levy of purchase tax as provided in section 16(1) of the Act. 4.. The Sales Tax Officer thereafter levied purchase tax amounting to Rs. 1,09,741 in so far as the breach related to relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (packing materials) and therefore, confirmed the order passed by the Sales Tax Officer on that point. 8.. The applicant filed an appeal before the Tribunal raising two contentions. The first contention raised by the applicant was in respect of purchase tax under section 16(1) of the Act on the purchase of variety of goods made by the applicant against certificates in form 19 without paying any tax thereon. However, Mr. S.L. Modi, learned advocate for the applicant-assessee, did not press the point regarding purchase tax amounting to Rs. 1,09,741 in respect of the goods manufactured therefrom by the applicant for the job-work and also those sold to the Gujarat Electricity Board free of tax against certificate in form "C " as well as goods supplied to new industry free of tax against certificate in form "Z" in view of the decision of the Supreme Court in the case of Hindustan Brown Boveri Ltd. v. State of Gujarat [1981] 47 STC 376 and he accepted the decision of the lower authority. However, so far as the levy of purchase tax on the purchase of wooden sizes made by the applicant on the strength of certificates in form 19 was concerned Mr. Modi attempted to challenge the same on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooden sizes is concerned, there was no such specific concession given on behalf of the applicant-assessee. 14.. Mr. K.M. Mehta, learned AGP appearing for the opponent-State, has submitted before us that once when the concession is given before the Assistant Commissioner that point cannot be raised again before the Tribunal. It may be stated that similar argument was made before the Tribunal by the Government agent and the Tribunal found substantial weight in the said argument/submission inasmuch as the appellant (assessee) announced in specific terms that it had no objection to the levy of purchase tax on the aforesaid purchases made by it. It is also observed by the Tribunal that "evidently the tone and the contents of the said written submission indicate unequivocally that the appellant had abandoned the pursuit of its contention in this itself, if any, before the learned Assistant Commissioner in first appeal". Therefore, the reaction of the learned Tribunal was that it cannot be other than one of not entertaining the same. 15.. The levy of penalty under sections 45(1) and 45(6) of the Act would depend upon the liability of the applicant-assessee to pay the purchase tax. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tire range of questions that could be raised at the stage of assessment. The assessee may not be aggrieved with certain of the decisions taken by the ITO and, hence, naturally the appeal would not relate to those decisions. Though the entire range of assessment is open to challenge in the appeal and all the decisions taken by the ITO are liable to be challenged in the appeal, the assessee may confine his objection to the assessment to certain only of the decisions taken by the ITO, expressly or impliedly. The subjectmatter of the appeal may be limited to some part or other of the assessment order to which the assessee really takes objection. Therefore. he would be seeking relief in regard to that matter in relation to which he has objection in the matter of assessment. The scope of relief sought by the assessee in appeal determines the subject-matter of the appeal. That may have to be inferred since the assessee may not indicate in specific terms what the scope of the relief that he seeks in the appeal is. This has quite often to be understood from the range of attack made on the assessment order as reflected in the grounds of appeal. The contours of the challenge, as so reflected, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of subject-matter, it may happen that substantially a claim is urged by an assessee assuming that he is entitled to that claim under a certain provision of law indicated by him. It may be that he is entitled to relief in respect of such claim or part of it not because of that provision, but of some other provision of law. For the mere reason that he does not refer to or advert to the provision appropriately applicable will be no reason to deny him the right to urge his case, since, in such a case also, the subject-matter will not change by reason of allowing the question to be raised." Ultimately in the last paragraph of the said judgment the Full Bench has observed as under: ".......The relief which the assessee may get in regard to the computation of capital, he may get to some extent even if a different approach is made to the computation of capital, viz., by permitting the plea that debts and liabilities ought not to be deducted. Therefore, the subject-matter would remain the same notwithstanding allowing such a ground to be raised. No doubt it is not easy always to delineate the contours of the subject-matter. Facts of each case will have to be taken into account for tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntary separation also was obviously wrong and an erroneous concession of law made by the defendants' advocate could not be relied upon for saving the plaintiffs.........." Even otherwise law on this point is well-settled that any concession on the point of law made by the advocate would not be binding. The aforesaid writing of the advocate is erroneous inasmuch as it was contrary to the judgment in the case of Vasuki Carborundum Works [1979] 43 STC 294 (Guj). 20.. It may be stated that judgment in the case of Vasuki Carborundum Works [1979] 43 STC 294 (Guj) is of November 17, 1978 and the alleged concession was made by the advocate on August 13, 1979. It is rather interesting to note that the Assistant Commissioner who decided the appeal has relied on the judgment of this Court in the case of Nowroji N. Vakil Co. v. State of Gujarat [1979] 43 STC 238 which was subsequently delivered, i.e., on November 27, 1979. Both the judgments, i.e., judgments in the cases of Vasuki Carborundum Works [1979] 43 STC 294 (Guj) and Nowroji N. Vakil Co. [1979] 43 STC 238 (Guj) are reported in the same volume of Sales Tax Cases. However, no note of the judgment in the case of Vasuki Carborundu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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