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TMI Blog2014 (7) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... with the appellate order and therefore, it ceases to be in existence - the application of doctrine of merger depends on the nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge led or capable of being led, it shall be determinative of the applicability of merger. If the subject matter of the original proceedings is not the subject matter of the appellate proceedings, the doctrine of merger has no application. Then, if on that aspect the original order is to be modified or altered, the power is conferred on the original authority to do so. The said authority is at liberty to initiate proceedings for modification or alteration of the said order as the said order has not merged with the appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. Aggrieved by the said order, the assessee preferred first appeal before the Joint Commissioner of Commercial Taxes. The appeal was dismissed confirming the order passed by the Assessing Authority. The said order became final. Subsequently, the Deputy Commissioner of Commercial Taxes noticed certain escapement of taxable turnover in the original assessment order. Therefore, he initiated proceedings under section 12A of the Act for re-assessment. Notice was issued. The assessee entered appearance and opposed the re-assessment. After hearing him, re-assessment order was passed. The assessee preferred an appeal before the Joint Commissioner of Commercial Taxes by way of first appeal. The said appeal came to be dismissed. Aggrieved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lower authorities on the short ground which is ex-facia illegal and error apparent on the face of the record. 4. Per contra, learned counsel for the assessee submitted that when once an assessment order was the subject matter of an appeal and the Appellate Authority has decided the appeal on merits, the original order of assessment merges with the order of the Appellate Authority. There was no original order of assessment which was in existence for the assessing officer to exercise the jurisdiction under Section 12A of the Act. 5. Both the learned counsel relied on several judgments in support of their respectful contentions. Therefore, in the light of the aforesaid facts and the rival contentions, the point that arise for our consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said order, the assessee preferred an appeal which also came to be dismissed. It is against that order, the second appeal was filed before the Tribunal. The question before the Tribunal was whether the Assessing Authority was justified in disallowing those exemptions. However, the Tribunal, without going into the merits, allowed the appeal on the ground that once an appeal has been filed against the assessment order, the Assessing Authority had no jurisdiction to initiate proceedings under section 12A to re-assess, as the original assessment order had merged with the appellate order. In that connection, the Tribunal relied on a judgment of the Apex Court in the case of State of H. P. v. Gujarat Ambuja Cement Ltd. [2005] 142 STC 1. In para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taxable under section 5(1), on the ground that the goods were not covered by entry 73-B. The Commissioner proposed to revise this order on the same ground and roped in the goods into entry 73-B. Therefore, the subject-matter of the first revisional proceedings is the same (which was also the subject-matter considered by the assessing authority earlier), it has to be held that there was fusion or merger of the two orders thereby the original order of assessment losing its identity. 8. Therefore, it is clear from this judgment, where the subject matter of the original proceedings and the subject matter of the appeal proceedings is one and the same and the Appellate Authority pronounces on the said subject matter, then the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing led, it shall be determinative of the applicability of merger. If the subject matter of the original proceedings is not the subject matter of the appellate proceedings, the doctrine of merger has no application. Then, if on that aspect the original order is to be modified or altered, the power is conferred on the original authority to do so. The said authority is at liberty to initiate proceedings for modification or alteration of the said order as the said order has not merged with the appellate order. 10. Seen from that angle, the question whether the deductions given to the assessee in the earlier order is legal or not, was not the subject matter of appeal in an appeal preferred by the assessee on other aspects and therefore, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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