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TMI Blog1992 (11) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... sale and as such not exigible to tax in the light of the judgment of the Supreme Court in the case of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1980] 45 STC 212? 2.. The facts in brief for the purpose of deciding the aforesaid question can be stated as under: 3.. M/s. Gandhi Cold Drink House is a partnership-firm doing business of preparing tea, soda lemon, cold drinks, etc., in a restaurant. Said firm is registered as a dealer under the provisions of the Bombay Sales Tax Act, 1959 and under the Gujarat Sales Tax Act, 1969. 4.. On July 24, 1974, the Sales Tax Officer paid surprise visit to the place of business of M/s. Gandhi Cold Drink House, opponent herein, and seized the books of accounts along with other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, they could not be exigible to tax. 7.. To the said plea of the opponent-dealer the learned advocate appearing for the Revenue before the Tribunal had raised an objection that the said plea could not be entertained for the first time at the stage of second appeal and stated that the question whether the transactions of the earlier period or at least some of them were in the nature of service or sales was never an issue before the lower authorities. He therefore, submitted that in the absence of any finding on the said point by the lower authorities the Tribunal could not entertain the said issue much less enter into merits thereof. 8.. The Tribunal after considering the authorities cited before it permitted the opponent-dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts jurisdiction to decide it as per the provisions of section 65(6) of the Act. When that is so, the Tribunal had all powers to decide the appeals involving questions of facts as well as law. 11.. The next question would be, whether new grounds which affect the very jurisdiction of the sales tax authorities to levy tax, can be raised before the Tribunal in view of the decision of the Supreme Court in the case of Northern India Caterers (India) Ltd. [1980] 45 STC 212. Similar question had arisen before us in Sales Tax Reference No. 10 of 1988 which was decided by us on September 15/16, 1992*. In the said case the question was with regard to giving certain concession by the assessee before the Assistant Commissioner of Sales Tax in appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 subject-matter 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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at approach before the first appellate authority should not stand in the way of his making the new approach. But all this must be related to the same subject-matter as was in appeal before the first appellate authority. If the subject-matter remains the same, the new case presented by him to obtain relief sought in respect of such subjectmatter should be permitted. If it is made in the first instance in the appeal memorandum before the Tribunal, there is no question of exercising discretion at that stage. When such a plea is not before the Appellate Tribunal, when the appeal is filed, but is raised later, the question whether it should be allowed or not is a matter of discretion as mentioned. The fact that the assessee had failed to make th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the question referred to us has to be answered in the affirmative, that is, in favour of the assessee and against the Revenue. We do so. 12.. In view of the aforesaid observations made by the Full Bench of this Court it is clear that if the subject-matter remains the same, matter can be argued from different approach by raising new grounds also. In the present case Mr. Mehta, learned Assistant Government Pleader has not disputed that the subject-matter of the second appeal was the entire assessment order and reassessment order passed by the Assistant Commissioner of Sales Tax in first appeals. When that is so, new ground which was sought to be raised by the opponent-assessee has been rightly allowed to be raised by the Tribunal and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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