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TMI Blog1981 (7) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant is a partnership firm, carrying on the business of manufacturing and selling vegetable oil. The Sales Tax Officer estimated the turnover for the calendar year 1971 and made an order, dated 26th March, 1973 levying Sales Tax at Rs. 73,198.62 and a penalty of Rs. 36,197.64. On the same date, another assessment order was made for the first six months of the year 1972, where again on the basis of an estimate the Sales Tax Officer computed the tax at Rs. 81,745.71 and levied a penalty of Rs. 37,572.26. The two assessment orders were apparently made under Section 33 of the Bombay Sales Tax Act, 1959. Against the assessment and penalty orders for the two periods the appellant appealed under Clause (a) of sub-section (1) of Section 55 of the Act to the Assistant Commissioner. By a common order, dated 29th September, 1973 the Assistant Commissioner reduced the quantum of the turnover and, consequently, the tax liability to Rs. 30,494.67 and the penalty to Rs. 11,745.71 for the first period and a tax liability of Rs. 16,447.33 and penalty of Rs, 5,572.26 for the second period. Not fully satisfied by the relief granted, the appellant proceeded in second appeal to the Maharashtra Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhogilal, (1958) 34 ITR 130 (S.C.). It spoke further of "the anomaly of overlapping jurisdiction" between the Commissioner and the Tribunal, and referred with approval to an earlier decision of the High Court in H.B. Munshi v. Oriental Rubber Industries Pvt. Ltd., (1974) 34 STC 113. 5. An assessment order under the Bombay Sales Tax Act is appealable under Section 55 of the Act, and we may mention only that when he order is made by the Sales Tax Officer an appeal lies to the Assistant Commissioner, if the order is made by the Assistant Commissioner an appeal goes to the Commissioner and if it has been made by the Commissioner (or Deputy Commissioner or Additional Commissioner) an appeal lies before the Tribunal. Sub-section (2) of Section 55 provides for a second appeal against the appellate order of the Assistant Commissioner. The second appeal lies at the option of the appellant, to the Commissioner or the Tribunal. The Tribunal, it will be noticed, exercises appellate jurisdiction by way of second appeal in respect of an assessment order made by the Sales Tax Officer. It also exercises, by way of first appeal, appellate jurisdiction over an assessment order made by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute plainly provides to the contrary, that appears to us to be incontrovertible. It is not open to the Commissioner to invoke his power under Clause (a) of sub-section (1) of Section 57 and summon the record of an order over which the Tribunal has already assumed appellate jurisdiction. The subordinate status of the Commissioner precludes that. 8. The High Court felt burdened by the compulsion that unless a contemporaneous exercise of concurrent jurisdiction was read not sub-section (1) of Section 57, so that both the Tribunal and the Commissioner could be regarded as simultaneously enjoying "overlapping jurisdiction" in respect to of the same order, it would be impossible to safeguard the interests of the Revenue; for, says the High Court, a second appeal is available only to a dealer and not to the Revenue, and an enterprising dealer could, by expeditiously filing a second appeal before the Tribunal effectively shut out the Commissioner from interfering with the order in interests of the Revenue. The High Court found itself driven to the conclusion that the Commissioner was entitled to revise an order at any stage, otherwise there could be cases where the assessment coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed as an order of assessment. It is final order disposing of an appeal which, in a sense, is a continuation of the assessment. A second appeal against such an order is an appeal against an order of assessment. 10. En passant, it will be noticed that sub-section (6) of Section 55 of the Bombay Sales Tax Act is in pari materia with sub-section (1) of Section 251 of the Income Tax Act, 1961. The language is almost identical. Sub-section (1) of Section 251 sets forth the same three categories and the power to enhance is confined to an order of assessment and an order imposing penalty. But in the case of a second appeal under the Income tax Act, there is a distinct departure from the scheme under the Bombay Sales Tax Act. Section 253 does not expressly speak of the "power to enhance", and makes no distinction in regard to the extent of the appellate power between any of the cases in which a second appeal lies from an order under Section 251. 11. It is evident then that in a second appeal under sub-section (2) of Section 55 of the Bombay Sales Tax Act, the Tribunal has power to enhance the assessment. That being so, plainly it is open to the Revenue to invoke that power in a pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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