TMI Blog1992 (8) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... sment was passed on October 13, 1977. The assessing officer rejected a claim made for the appellant before him for concessional rate of tax under section 3(3) of the Act in respect of the turnover of Rs. 1,10,404.53. 2.. Aggrieved, the appellant filed an appeal before the Appellate Assistant Commissioner. The only issue and item of turnover that was under challenge in appeal before the first appellate authority was in respect of the rate of taxation on a turnover of Rs. 1,10,404.53. The first appellate authority sustained the claim of the appellant and while setting aside the order of assessment in so far as it levied a tax of 8 per cent on the above referred to turnover, held that the turnover is liable to the concessional rate of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act and that at any rate, the turnover in question was only liable to tax at single point under entry 102 of the First Schedule to the Act and inasmuch as the said turnover has already suffered tax, the move to treat the turnover in question as subject to multi-point rate, and levy tax once again in the hands of the appellant cannot also be justified. The Joint Commissioner overruled the objections and confirmed the proposals by bringing to the net of taxation the turnover of Rs. 43,815 at the rate of 4 per cent. Aggrieved the above appeal before us. 4. Mr. Ramagopal, learned counsel appearing for the petitioner, urged two contentions, one on the plea of limitation and the other on merits. In the light of the view we propose to take o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Mills Co. Ltd. [1967] 19 STC 144 the apex Court, while confirming the decision of this Court in [1962] 13 STC 124 (Madura Mills Co. Ltd. v. State of Madras), held that the doctrine of merger is not a doctrine of rigid and universal application and that it cannot be said that it is automatically attracted wherever there are two orders, one by an inferior authority and the other by the superior authority passed on an appeal or revision, readily assuming fusion or merger of the two orders irrespective of the subject-matter of the appellate or revisional order and scope of appeal or revision contemplated by the particular statute. It was further held therein that the application of the doctrine of merger depends on the nature of the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of a particular item or items of turnover. 6.. A Division Bench of this Court had another occasion to deal with a similar situation in Yercaud Coffee Curing Works Ltd. v. State of Madras [1974] 33 STC 170. That was a case where the assessee claimed before the assessing authority exemption of a turnover of about Rs. 6 lakhs on the ground that the sum represented second sales of fertilizers and the assessing authority accepted the assessee's claim for exemption, but only in respect of Rs. 5 lakhs and appears to have rejected its claim for the balance of about Rs. 70,000. The assessee seems to have preferred an appeal only against the rejection of the claim by the assessing authority in respect of a turnover of Rs. 70,000 and the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking a contrary view has been brought to our notice and consequently the subject-matter before us has to be dealt with the light of the ratio of the two decisions referred to supra. On the facts of the case before us, there can be no dispute that the appeal before the first appellate authority related only to eligibility of the claim of the assessee for concessional rate under section 3(3) of the Act in respect of a turnover of Rs. 1,10,440.53 and it has nothing to do with any other issue or category of turnover and particularly the sales turnover of Rs. 43,815 sought to be brought to tax treating the said turnover as subject to multi-point levy and not to a single point tax as considered and exempted by the assessing officer since in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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