1. This is an appeal preferred by the assessee under Section 41 of the Pondicherry General Sales Tax Act, 1967, hereinafter referred to as the Act. In this case, the Joint Commercial Tax Officer, Pondicherry, determined the taxable turnover of the assessee at Rs. 31,025 for the assessment year 1969-70 by his order dated 28th January, 1971. Against this order, the assessee preferred an appeal to the Appellate Assistant Commissioner, Pondicherry and the Appellate Assistant Commissioner by his order dated 7th July, 1971, reduced the turnover to Rs. 18,300. On 9th November, 1971, the Government of Pondicherry issued a notice to the assessee under Section 37 of the Act proposing to set aside the order of the Appellate Assistant Commissioner as well as the assessing authority and to enhance the turnover. The assessee sent a reply and thereafter the (1) [1977J 39 S.T.C. 246. Government passed an order on 6th December, 1971, by setting aside the order of the Appellate Assistant Commissioner and modifying that order by redetermining the turnover at Rs. 52,164. It is against this order of the Government that the present appeal has been filed by the assessee.
2. The learned counsel for the appellant contented himself with a very short submission. The learned counsel pointed out that the Government set aside only the order of the Appellate Assistant Commissioner and that if it so set aside the order of the Appellate Assistant Commissioner it should have restored the order of the assessing authority and if it wanted to set aside the order of the assessing authority also, it should have done so and directed the assessing authority to conduct a fresh enquiry and that the Government itself had no power to set aside the order of the Appellate Assistant Commissioner and to modify that order so as to enhance the turnover over and above of what even the original authority determined. We are clearly of the opinion that this contention is well-founded. The relevant portion of the order of the Government is as follows:
Adopting the rate of Rs. 4 per kg. the taxable turnover comes to Rs. 52,164. The order of the Appellate Assistant Commissioner is, therefore, set aside and modified as stated above.
3. We are of the opinion that certainly the Government had the power to set aside the order of the Appellate Assistant Commissioner under Section 37 of the Act. When it so sets aside the order, one or the other of the following consequences may follow :
(1) It may restore the order of the assessing authority ; or
(2) It may set aside the order of the assessing authority also and direct the assessing authority to redetermine the turnover.
4. However, it had no power whatever to modify the order of the Appellate Assistant Commissioner so as to redetermine the turnover to be in excess of the turnover determined by the assessing authority itself, because the appellate order was passed at the instance of the assessee and, therefore, the assessee cannot be placed in a worse position than what he would have been if he had not preferred the appeal, by modifying the order of the Appellate Assistant Commissioner to the prejudice of the assessee. On this very short ground, this appeal is allowed and the order of the Government dated 6th December, 1971, is set aside, so far as it purported to modify the order of the Appellate Assistant Commissioner. As we have pointed out already, the Government did have the power to set aside the order of the Appellate Assistant Commissioner, but did not have the power to modify the said order in the manner it did. The result of our allowing the appeal in this manner and setting aside the order of the Government partially will be to restore the order of the assessing authority dated 28th January, 1971. There will be no order as to costs. The fee of the Government Pleader, Pondicherry, is fixed at Rs. 200 (Rs. Two hundred only) for this case.