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TMI Blog1998 (12) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... ncriminating material was recovered. The dealer had disclosed a gross turnover (U.P.) at Rs. 1,29,42,946 admitted to be taxable at the rate of 4 per cent and another turnover of iron and steel amounting to Rs. 1,56,22,747 admitted to be taxable at the rate of 2 per cent for the purposes of Central sales tax. It had declared a turnover of Rs. 3,12,080 which was admitted to be taxable at the rate of 4 per cent. Because of a survey the assessing officer rejected the books of account and the returned turnover and estimated an additional turnover at Rs. 3,28,64,200 taxable at the rate of 4 per cent under the U.P. Trade Tax Act. The turnover of Rs. 1,56,22,747 was not disturbed. As regards the assessment under the Central Sales Tax Act the assessing officer estimated an additional turnover of Rs. 30 lakhs taxable at the rate of 8 per cent. 5.. Against the aforesaid assessments the dealer preferred appeals to the Deputy Commissioner (Appeals) wherein it did not challenge the quantum of turnover and contested only the rate of tax on certain parts of the turnover. The learned Deputy Commissioner (Appeals) held that out of the turnover of Rs. 3,28,64,200 a part thereof to the extent of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment or penalty, as the case may be, whether such reduction or enhancement arises from a point raised in the grounds of appeal or otherwise; or (iii) set aside the order and direct the assessing authority to pass a fresh order after such inquiry as may be specified; or (iv) direct the assessing authority to make such inquiry and to submit its report within such time as may be specified in the direction or within such extended time as it may allow from time to time, and on the expiration of such time the appellate authority may, whether the report has been submitted or not, decide the appeal in accordance with the provisions of the preceding sub-clauses; or (b) in the case of any other order, confirm, cancel or vary such order. 6.. It is trite law that under section 9 of the Act the Revenue has no right of appeal and it is only a dealer or other person aggrieved by the order of the assessing authority who can file an appeal under section 9 of the Act. The dealerrevisionist had filed appeals to the Deputy Commissioner (Appeals) under section 9 of the Act and it is conceded that the Commissioner of Trade Tax had no right of appeal against the assessment orders. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r merely challenged the estimate of turnover and the appeal was dismissed the Commissioner could not challenge the appellate order in revision and raise a point regarding the rate of tax that was not involved in the first appeal. The court observed that the Commissioner had filed the revision against the appellate order. The appeal was filed by the assessee and it was confined to the estimate made by the Sales Tax Officer. A revision filed against this order would necessarily be confined to matters dealt with in the appellate order. There was no dispute before the appellate authority as to the correct rate of tax applicable to cosmetics from October 1, 1965 onwards, it was not open for the revisional authority to scrutinise this question on a revision filed against the appellate order. 10.. While preferring the appeal before the Tribunal in the present cases, the Commissioner was invoking the powers of the Tribunal to enhance the amount of assessment. Such power is conferred on the Tribunal by virtue of the explanation to section 5 of the Act but it has been held by this Court that this power is not a general power enabling the Tribunal to enhance the assessment in any case it li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is important to bear in mind that if in the case like the present one the Commissioner can challenge the assessment order itself before the Tribunal it would create anomalous situation. The Commissioner has no right of appeal against an assessment order. On the other hand, he has been conferred revisional jurisdiction to set right the errors and improprieties in the assessment order. It is unimaginable that though the law does not allow the Commissioner to challenge the assessment order in the first appeal he can do so by preferring a second appeal before the Tribunal. 13.. Learned Standing Counsel placed reliance on Smt. Keshari Devi Agarwal v. Commissioner of Sales Tax 1984 UPTC 481 in which it was observed that the Tribunal under section 10(5) of the Act has vast powers including that of varying the assessment by enhancing it and, therefore, the Tribunal could take into consideration a ground which was not considered by the assessing authority and the first appellate authority if there was material to bear out that ground factually. It may be mentioned that the observation is of a general character and in that case the Tribunal had not enhanced the turnover but had, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw arising from the facts found by the Income-tax authorities and having a bearing on tax liability of the assessee. It was held that the Tribunal had the power to allow a new ground to be raised. 16.. The subject-matter of the appeal and the grounds of appeal are often confused. The subject-matter is one thing and the grounds raised in respect of that subject-matter is another thing. Therefore, if the subject-matter of the appeal is not changed a new ground may be permitted to be taken up ; but where a matter has been concluded and could not be raised in the appeal it cannot be allowed to be raised by setting up an additional ground. 17.. In view of the above discussions I hold that while preferring an appeal under section 10 of the Act the Commissioner could not challenge the assessment order and the appeal could be filed only against the findings recorded and the order made by the Deputy Commissioner (Appeals) under section 9 of the Act. The Commissioner s appeals to the extent of challenging the turnover as determined by the assessing officer was not maintainable in law and the Tribunal had no jurisdiction to entertain such ground nor it had any jurisdiction to deal with th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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