TMI Blog2004 (6) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... nhance the assessment suo motu is not sustainable in law on the language of section 31(5). Consequently, that part of the order of the Tribunal is set aside. The revision stands allowed and the matter is remitted - - - - - Dated:- 24-6-2004 - Judge(s) : N. V. BALASUBRAMANIAN., M. THANIKACHALAM. JUDGMENT The judgment of the court was delivered by N.V. BALASUBRAMANIAN J. -This revision petition has been filed under section 54(1) of the Tamil Nadu Agricultural Income-tax Act, 1955, by the Special Commissioner and Commissioner of Agricultural Income-tax, Madras, against the order passed by the Tamil Nadu Agricultural Income-tax Appellate Tribunal, Madras, in A.T.A. No. 41 of 1996 dated August 28, 1997. The only point that arises in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revision. The learned special Government Pleader appearing for the appellant submitted that the view of the Tribunal that the Appellate Assistant Commissioner has no suo motu power of enhancement under section 31(5) of the Act is not correct and he further submitted that under the provisions of section 31(5) of the Act, the Appellate Assistant Commissioner has such power. He c also relied on the decision of a Full Bench of this court in State of Tamil Nadu v. Arulmurugan and Co. [1982] 51 STC 381 and submitted that the appellate authority has suo motu power of enhancement. Though notice was served on the assessee, there is no representation on behalf of the assessee. We carefully considered the submissions made by the learned Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Appellate Assistant Commissioner is empowered, while disposing of the appeal filed against the order of assessment, to confirm, reduce, enhance or annul the assessment. Section 31(5) also provides safeguard to the assessee that no enhancement of an assessment or penalty shall be made under this section unless the assessee has been given a reasonable opportunity of being heard against such enhancement. Section 31(5) of the Act empowers the Appellate Assistant Commissioner to enhance the assessment after giving a notice and b reasonable opportunity of hearing to the assessee. We do not find any restriction in the Act precluding the Appellate Assistant Commissioner from exercising the power of enhancement suo motu. It is well settled by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 'opponent', in the strictly procedural sense of the term, so too, the appellate authority sitting in appeal over the assessing authority's order of assessment is not strictly an arbitral tribunal deciding a contested issue between two litigants ranged on opposite sides. In a tax appeal, the appellate authority is very much committed to the assessment process. The appellate authority can itself enter the arena of assessment, either by pursuing further investigation or causing further investigation to be done. It can do so on its own initiative, without being prodded by any of the parties. It can enhance the assessment, taking advantage of the opportunity afforded by the taxpayer's appeal, even though the appeal itself has been mooted only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. We are of the view that the Revenue as a party in the appeal before the Tribunal, can file the enhancement petition, but in the appeal before the Appellate Assistant Commissioner there is no scope for the Assessing Officer, not being a party respondent to file any enhancement petition. Hence, we are of the view that the Tribunal has misread the principles laid down in P.T. Marimuthu Chettiar's case [1984] 55 STC 253 (Mad) and held that the Appellate Assistant Commissioner has no power to enhance the assessment. We hold that the view of the Appellate Tribunal that the Appellate Assistant Commissioner has no suo motu power to enhance the assessment suo motu is not sustainable in law on the language of section 31(5) of the Act. Consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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