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TMI Blog1998 (2) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... arket sale and the penalty had been determined at Rs. 11,23,002.60. 3. The aggrieved assessee-dealers filed an appeal in A.P. CST. 56/89 before the Appellate Assistant Commissioner, (C.T.), Tirunelveli, and he, in turn, refixed the taxable turnover for the assessment year as below: Rs. (i) Inter-State sales covered by valid "C" forms at 4 per cent 23,43,54,366 (ii) Inter-State. sales not covered by "C" forms at 10 percent 29,78,604 (iii) Inter-State sales effected before obtaining R.C. Nos. By sellers at 4 per cent. 57,400 (iv) DMR's (Delivery Money Receipt) disallowed and treated As inter-State sales at 10 per cent. 3,67,513 Total taxable turnover refixed ... 23,77,57,883 Add: Exemption allowed: (a) Depot transfer covered with valid documents (allowed). 46,12,247 (b) Consignment sales covered with valid records (allowed). 27,54,987 (c) Cash discount and trade discount allowed 3,72,305 Add: Turnover remanded: Covered wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who issued the same and for what purpose. They claim that no chance to crossexamine the concerned was also not provided by the department. The appellants heavily relied on the fact that not even a single instance of direct transaction between the out-State buyer is established by the department in spite of their efforts. 5.. Even though the materials involved are many they are not properly explained and exposed and we feel that this is a fit case for de novo examination and orders. We feel the entire records has got to be examined afresh and finding given in each of the documents connected. We therefore, remit the same for de novo. In fine, the appeal is remanded." 8.. Mr. C. Natarajan, learned Senior Counsel appearing for the assesseedealers would assail sarcastically the order passed by the Tribunal. The Tribunal would state in its order in paragraph 4, "We are in a fix to sit over the case, which relates to 1986-87 with contrary views taken by the lower authorities". But that was not really so and what he would say is, "we are in a fix to understand the very operative portion of the order of the Tribunal, as couched in paragraphs 4 and 5". 9.. On the other hand, Mr. K. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the question, our attention had been drawn to certain precedents of the apex Court and this Court as well. (i) In M. Chokkalingam v. State of Tamil Nadu [1994] 94 STC 127 (Mad.) [App.], the question that arose for consideration was as to whether the enhancement petition filed by the department in the dealer's appeal before introduction of provision therefor was maintainable. A Division Bench of this Court, consisting of Dr. A.S. Anand, (as he then was) and Kanakaraj, J., held that even before the introduction of section 36(3-A) in the Tamil Nadu General Sales Tax Act, 1959, providing for the filing of enhancement petitions by the department where appeals are filed by the dealer, the Appellate Tribunal had the power under section 36(3)(a)(i) of the Act, to enhance assessments. Therefore, an application for enhancement filed by the department before the Tribunal during the pendency of the dealer's appeal, before the introduction of section 36(3-A) would be maintainable and the Tribunal entitled to pass orders on the application after putting the dealer on notice. (a) In so holding e Bench further said that after the introduction of section 36(3-A) in the statute book, such an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the contesting parties, namely, the assessee on the one hand and the Revenue on the other comes under the focus of scrutiny of the Tribunal. Once the entire appellate order being partly in favour and partly against the assessee becomes subject to the jurisdiction of the Appellate Tribunal, the bar of section 34(2)(b) against the revisional powers of the Board of Revenue would operate in its full swing and such an order of the Appellate Assistant Commissioner which is pending scrutiny before the Appellate Tribunal will go out of the ken of revisional jurisdiction conferred on the Board of Revenue under section 34." (iii) In State of Kerala v. Vijaya Stores [1978] 42 STC 418 (SC), the short question raised in the appeal by special leave was as to whether the Appellate Tribunal has power under section 39(4) of the Kerala General Sales Tax Act, 1963 (for short, "the KGSTA") to enhance the assessment in the absence of any appeal or cross-objections by the Revenue: (a) Sub-section (2) of section 39 of the KGST Act, 1963 reads as under: "(2) The officer authorised under sub-section (1) or the person against whom an appeal has been preferred, as the case may be, on receipt of not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) set aside the assessment and direct the assessing authority to make a fresh assessment after such further enquiry as may be directed; or (iii) pass such other orders as it may think fit; or (b) in the case of any other order, confirm, cancel or vary such order." (d) The more or less in pari materia provision to the said sub-section is traceable to section 36(3) of the TNGST Act, 1959 and it reads as under: "Section 36(3): In disposing of an appeal, the Appellate Tribunal may, after giving the appellant a reasonable opportunity of being heard, and for sufficient reasons to be recorded in writing- (a) in the case of an order of assessment- (i) confirm, reduce, enhance, restore fully or partially, as the case may be, or annul the assessment or the penalty or both; (ii) set aside the assessment and direct the assessing authority, to make a fresh assessment after such further inquiry as may be directed; or (iii) pass such other orders as it may think fit; or (b) in the case of any other order, confirm, cancel or vary such order: Provided that at the hearing of any appeal against an order of the Appellate Assistant Commissioner or the Deputy Commissioner, the (1)[G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred upon the Appellate Tribunal while disposing of such appeals (including cross-objections) and the power conferred upon the Appellate Tribunal under sub-section (4)(a)(i) is 'to confirm, reduce, enhance or annul the assessment'; the power to enhance the assessment must be appropriately read as relatable to an appeal or cross-objections filed by the department. The normal rule that a party not appealing from a decision must be deemed to be satisfied with the decision, must be taken to have acquiesced therein and be bound by it, and, therefore, cannot seek relief against a rival party in an appeal preferred by the latter, has not been deviated from in sub-section (4)(a)(i) above. In other words, in the absence of an appeal or crossobjections by the department against the Appellate Assistant Commissioner's order the Appellate Tribunal will have no jurisdiction or power to enhance the assessment. Further, to accept the construction placed by the counsel for the appellant on sub-section (4)(a)(i) would be really rendering sub-section (2) of section 39 otiose, for if in an appeal preferred by the assessee against the Appellate Assistant Commissioner's order the Tribunal would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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