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Mohan Lal and Co. Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberSales Tax Reference No. 387 of 1973
Judge
Reported in[1976]38STC37(All)
AppellantMohan Lal and Co.
RespondentCommissioner of Sales Tax
Appellant AdvocateR.C. Sharma, Adv.
Respondent AdvocateThe Standing Counsel
Excerpt:
- .....question :-whether, upon the facts and in the circumstances of the case, it was open to the revising authority upon a revision application filed by the state to entertain a ground against the levy of a rate of 2 per cent in respect of dhoop batti when that rate was never in dispute before the appellate authority, which disposed of the appeal filed by the assessee?2. the assessee, amongst other things, deals in dhoop batti. the assessment years involved are 1962-63, 1963-64 and 1966-67. the turnover of dhoop batti is not in dispute. it was enhanced by the sales tax officer but was accepted by the appellate authority and thereafter by the revising authority. before the revising authority, however, the department raised a ground with regard to the rate of tax saying that the turnover.....
Judgment:

R.L. Gulati, J.

1. Under Section 11(4) of the U. P. Sales Tax Act, the Additional Judge (Revisions), Sales Tax, Kanpur, has submitted this reference seeking the opinion of this court on the following question :-

Whether, upon the facts and in the circumstances of the case, it was open to the revising authority upon a revision application filed by the State to entertain a ground against the levy of a rate of 2 per cent in respect of dhoop batti when that rate was never in dispute before the appellate authority, which disposed of the appeal filed by the assessee?

2. The assessee, amongst other things, deals in dhoop batti. The assessment years involved are 1962-63, 1963-64 and 1966-67. The turnover of dhoop batti is not in dispute. It was enhanced by the Sales Tax Officer but was accepted by the appellate authority and thereafter by the revising authority. Before the revising authority, however, the department raised a ground with regard to the rate of tax saying that the turnover of dhoop batti should have been assessed at 7 per cent as it was an article of perfumery as held by the Supreme Court in Commissioner of Sales Tax, U.P. v. Indian Herbs Research and Supply Co. [1970] 25 S.T.C. 151 (S.C.). The Sales Tax Officer had assessed the turnover of dhoop batti at 2 per cent. The rate was not disputed by the assessee or the department before the appellate authority. Only the quantum of turnover was in dispute. For the first time before the revising authority the department wanted the rate to be enhanced. The revising authority accepted this request and enhanced the rate. The assessee is aggrieved and, at his instance, the question of law, set out above, has been referred.

3. Admittedly, the rate of tax was not in dispute either before the Sales Tax Officer or before the appellate authority. The department had preferred a revision against the appellate order only on the ground that the turnover as declared by the assessee should not have been accepted. This relief was refused by the revising authority. The Judge (Revisions) had, therefore, no jurisdiction to entertain a ground with regard to the rate of tax because that was not the subject-matter of appeal before the appellate authority against whose order the revision was directed. The Judge (Revisions) was of the opinion that he had suo motu power to correct the rate on the basis of the judgment of the Supreme Court. In our opinion, this view of the revising authority is wrong. Enhancing the rate amounts to enhancement of tax liability. Unlike the appellate authority the revising authority has no power of enhancement. Under Section 10, as it stood at the material time the evising authority had the power to call for the record of a case suo motu or on the application of the aggrieved party to examine the legality and propriety of any order passed by the appellate or the assessing authority and to pass such order as it deemed fit. This power is no doubt of wide amplitude but this power does not include the power of enhancement. The Supreme Court considered a similar question with reference to the power of the Income-tax Appellate Tribunal under Section 33(4) of the Income-tax Act, 1922, in Hukumchand Mills Ltd. v. Commissioner of Income-tax, Central, Bombay [1967] 63 I.T.R. 232 at 237 (S.C,). The power of the Appellate Tribunal is defined in Section 33(4) as under :

The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.

4. The Supreme Court while examining the scope of this provision has made the following observations :

The word 'thereon', of course, restricts the jurisdiction of the Tribunal to the subject-matter of the appeal. The words 'pass such orders as the Tribunal thinks fit' include all the powers (except possibly the power of enhancement), which are conferred on the Appellate Assistant Commissioner by Section 31 of the Act.

5. A similar view has been taken by this court in Firm Parshuram Ramesh-war Lai, Basti v. State of U. P. 1974 U.P.T.C. 65.

6. For the reasons stated above, we answer the question in the negative in favour of the assessee and against the department. The assessee is entitled to costs, which we assess at Rs. 100.


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