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2010 (8) TMI 850 - HC - VAT and Sales TaxWhether, in the facts and circumstances of the case, the order of the Tribunal is sustainable in law that D.E.T.C. (I) was competent to take action in the matter despite the pendency of the appeal before the Tribunal? Whether, in the light of ratio of law laid down by the honour able Supreme Court in Tel Utpadak Kendra v. Deputy Commissioner of Sales Tax [1981 (7) TMI 80 - SUPREME COURT OF INDIA], where the decision relied upon by the Tribunal in Santoshi Tel Utpadak Kendra v. Deputy Commissioner [1978 (7) TMI 233 - BOMBAY HIGH COURT] stands reversed, the decision of the Tribunal dated January 16, 1997 is liable to be set aside? Whether, in view of the retrospective effect of section 15A, Explanation by Act 7 of 1996 which has been made applicable to A.Y. 1983-84 also, the levy of tax on consumable store, etc., is sustainable in law? Whether, in the facts and circumstances of the case, the ex parte decision of the Tribunal is legal and void? Held that:- Appeal against assessment could result in assessment order being examined on the merits and even higher demand being raised which could not have been done in an application for revision filed by the assessee. This being the position, the judgment of the honourable Supreme Court is distin guishable. Question No.1 is accordingly answered against the assessee and in favour of the Revenue. We accordingly answer the question Non 2 in favour of the assessee and against the Revenue and hold that the revision by officer of the same rank was not permissible. The learned counsel for the assessee states that in view of decision of question (2), questions (3) and (4) do not survive. We accordingly leave the said questions unanswered.
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