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Vijaya Stores Vs. the State of Kerala - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case Number Tax Revision Case No. 59 of 1973
Judge
Reported in[1975]36STC286(Ker)
AppellantVijaya Stores
RespondentThe State of Kerala
Appellant Advocate S. Hariharan, Adv. and; T.S. Viswanatha Iyer, Amicus Curiae
Respondent AdvocateThe Government Pleader
Cases ReferredCentral Camera Co. (P.) Ltd. v. Government of Madras
Excerpt:
.....judgment. now what we have just said is nothing more than really a summary of the provisions with regard to appeals and cross-objections contained in order 41 of the civil procedure code ;and, as we shall presently point out, the position of the appellate tribunal is the same as a court of appeal under the civil procedure code and the powers of the appellate tribunal are identical with the powers enjoyed by an appellate court under the code......1963, for short, the act. the relevant part of that section is in these terms :39. appeal to the appellate tribunal.-(1) any officer empowered by the government in this behalf or any other person objecting to an order passsd by the appellate assistant commissioner under sub-section (3) of section 34 and any person objecting to an order passed by the deputy commissioner under sub-section (1) of section 35, and any person objecting to an order passed by the inspecting assistant commissioner under clause (c) of sub-section (4) of section 28 may, within a period of sixty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the appellate tribunal:provided that the appellate tribunal may admit an appeal presented after the expiration.....
Judgment:

P. Govindan Nair, C.J.

1. The question that arises in this tax revision case turns on the interpretation to be placed on Section 39 of the Kerala General Sales Tax Act, 1963, for short, the Act. The relevant part of that section is in these terms :

39. Appeal to the Appellate Tribunal.-(1) Any officer empowered by the Government in this behalf or any other person objecting to an order passsd by the Appellate Assistant Commissioner under Sub-section (3) of Section 34 and any person objecting to an order passed by the Deputy Commissioner under Sub-section (1) of Section 35, and any person objecting to an order passed by the Inspecting Assistant Commissioner under Clause (c) of Sub-section (4) of Section 28 may, within a period of sixty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Tribunal:

Provided that the Appellate Tribunal may admit an appeal presented after the expiration of the said period if it is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period.

(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 notice that an appeal against the order of the Appellate Assistant Commissioner has been preferred under Sub-section (1) by the other party, may, notwithstanding that he has not appealed against such order or any part thereof, file, within thirty days of the receipt of the notice, a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Appellate Assistant Commissioner, and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in Sub-section (1).

(3) The appeal or the memorandum of cross-objections shall be in the prescribed form and shall be verified in the prescribed manner, and in the case of an appeal preferred by any person other than an officer empowered by the Government under Sub-section (1), it shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed.

(4) In disposing of an appeal, the Appellate Tribunal may, after giving the parties a reasonable opportunity of being heard either in person or by a representative,-

(a) in the case of an order of assessment or penalty,-

(i) confirm, reduce, enhance or annul the assessment or penalty or both;

(ii) 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....

2. This tax revision is by an assessee regarding whose turnover there has been an estimate for the assessment year 1965-66. A note book containing entries for the period from 23rd April, 1965, to 28th May, 1965, was discovered. This note book revealed a turnover of Rs. 80,218.22. The Sales Tax Officer was of the view that half of this turnover was relatable to the entries in the regular account books. He therefore estimated the turnover on that basis and found that the profit made worked out at 8. 7 per cent of that turnover. He felt that the profit should be 10 per cent and on that basis worked out the turnover and found the addition to be made to the turnover was Rs. 45,654.73. The assessee appealed and the Appellate Assistant Commissioner came to the conclusion that the estimate of 10 per cent profit was unjustified. He worked out the turnover on the basis that the profit would be only 5 per cent and thus added only Rs. 22,823.00 to the turnover. From this decision of the Appellate Assistant Commissioner, no appeal was taken by the department before the Tribunal. The assessee however appealed and in that appeal, the Tribunal held that the additions made both by the Sales Tax Officer and the Appellate Assistant Commissioner were not enough and directed an addition of a sum of Rs. 80,218.22 to the turnover;

3. In the absence of counsel for the revision petitioner we requested Sri, T. L. Viswanatha Iyer to assist the court and we are grateful to him for arguing the case and for citing the relevant decisions. Before we deal with these decisions, we would like to make some general observations.

4. The normal rule is that any party not appealing from a decision will be bound by the decision and an appellate authority dealing with an appeal would not pass an order prejudicial to the party that has appealed against a decision. The decision rendered in this case by the Appellate Assistant Commissioner was against the department and, to a certain extent, the decision by the Sales Tax Officer was also against the department if the real addition to be made was Rs. 80,000 and odd and not Rs. 40,000 and odd. The department cannot accept those decisions or remain quiet, or acquiesce in them by refraining from appealing or challenging the decisions by way of cross-objections, and then turn round at the hearing of the appeal by the assessee and contend that what has been done by the Sales Tax Officer and/ or by the Appellate Assistant Commissioner is unjustified and that there should have been a higher addition than what has been made by the Sales Tax Officer and/or the Appellate Assistant Commissioner. This rule, we conceive, permeates Section 39 of the Act, which we have read. That is the reason why Sub-section (2) of Section 39 of the Act has provided for cross-objections and Sub-section (3) has provided for payment of fee on those cross-objections. The scheme of the section spells a finality in regard to the matters which had not been challenged directly. An aggrieved person when he claimed that the estimate must be reduced or cancelled certainly should not be burdened with higher liability or obligations than that imposed by the orders appealed against. An appeal as the word indicates is a request for reduction and the worst that can happen to the appellant is that his appeal would be dismissed.

5. Counsel on behalf of the respondent invited our attention to Clauses (a) and (b) of Sub-section (4) of Section 39 of the Act and stated that the powers in the case of orders of assessment and of imposing penalty stand on a different footing from other orders, which had been dealt with under Clause (b) of Sub-section (4). We find no such difference. Though under Clause (a) of Sub-section (4) occur sub-clauses (i), (ii) and (iii) containing detailed enumeration of the powers of the Appellate Tribunal, we think that what is succinctly stated under Clause (b) practically cover the grant of the same powers. No doubt Sub-clause (i) of Clause (a) of Sub-section (4) of Section 39 speaks of the power of the Appellate Tribunal to confirm, reduce, enhance or annul the assessment or penalty or both. Great emphasis had been laid on the word 'enhance' and it was contended that by virtue of this provision the Appellate Tribunal has the power to enhance the turnover in an appeal by the assessee. Section 39(1) contemplates an appeal not only by the assessee but by the officer empowered by the Government in that behalf. The enhancement can only be in appeals taken by the officer empowered by the Government. The word 'enhance' cannot be read as conferring a power on the Tribunal to increase when the assessee prays for reduction. That would militate against the general rule which we have indicated. This would amount to penalising an appellant for seeking relief before the Tribunal.

6. We are fortified in this by the view taken in two decisions. Kania, J., as he then was, in Motor Union Insurance Co. Ltd. v. Commissioner of Income-tax [1945] 13 I.T.R 272 at 282 and Chagla, C.J., in New India Life Assurance Co. Ltd. v. Commissioner of Income-tax, Excess Profits Tax, Bombay City [1957] 31 I.T.R. 844 at 855 and 857, have come to the same conclusions. This is what Kania, J., said in relation to Section 33(4) of the Indian Income-tax Act, 1922, the wording of which is in pari materia to the wording of Section 39 of the Act with which we are concerned :

On behalf of the Commissioner, it is urged that Section 33(4) does not circumscribe the powers of the Tribunal, and leaves the Tribunal at large to raise any question it pleases and decide the same. In our opinion, this argument is unsound. Apart from statute, it is elementary that if a party appeals, he is the party who comes before the Appellate Tribunal to redress a grievance alleged by him. If the other side has any grievance, he has a right to file a cross-appeal or cross-objections. But if no such thing is done, the other party, in law, is deemed to be satisfied with the decision. He is, of course, entitled to support the judgment of the first officer on any ground open to him, but he is not entitled to raise a ground so as to work adversely to the appellant and in his favour.

The above passage has been referred to and followed by the Bombay High Court in New India Life Assurance Co. Ltd. v. Commissioner of Income-tax, Excess Profits Tax, Bombay City [1957] 31 I.T.R. 844 at 855 and 857. We shall extract two relevant passages from that judgment:

The appellant is the party who is dissatisfied with the judgment; the respondent is the party who is satisfied with the judgment. Now what we have just said is nothing more than really a summary of the provisions with regard to appeals and cross-objections contained in Order 41 of the Civil Procedure Code ; and, as we shall presently point out, the position of the Appellate Tribunal is the same as a court of appeal under the Civil Procedure Code and the powers of the Appellate Tribunal are identical with the powers enjoyed by an appellate court under the Code.

And after referring to the judgment in Motor Union Insurance Co. Ltd. v. Commissioner of Income-tax [1945] 13 I.T.R 272 at 282, it was observed :

Therefore, again, what is being emphasized is that the Tribunal should not give a relief to the respondent which relief was not given to him by the trial court and which relief he has not himself-sought by either cross-appealing or cross-objecting. It only says that the Tribunal is not obliged to rest its decision on the grounds urged by the appellant. It recognises the principle that the judgment of the lower court may be supported on any ground even though it is not raised in the memo of appeal. That, however, does not permit the Tribunal to urge any other ground which would work adversely to the appellant; and when we look at the facts of that case, it is clear that what the Tribunal had done was to give a relief to the Commissioner in appeal when the assessee had appealed and the Commissioner had rested content with the decision of the Appellate Assistant Commissioner and the relief granted was obviously to the prejudice of the appellant.

7. Counsel Sri T.L. Viswanatha Iyer has very fairly brought to our notice the decision of the Orissa High Court in Commissioner of Sales Tax, Orissa v. Chunilal Parameswar Lal [1961] 12 S.T.C. 677, which has taken a different view. The assessee's counsel therein conceded the position against the assessee. With great respect, we prefer to follow the decisions of the Bombay High Court. That view is also supported by the decision of the Madras High Court in Central Camera Co. (P.) Ltd. v. Government of Madras [1971] 27 S.T.C. 112.

8. In the result, we hold that the order of the Tribunal is erroneous in law, set it aside and remand the case to the Tribunal for hearing the appeal of the assessee afresh and in accordance with law and in the light of what we have said in this judgment. We make no order as to costs.


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