TMI Blog2008 (12) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... nswering new plea already available on record. Matter remanded to Tribunal for decision on merits. - 1126 of 2006 - - - Dated:- 3-12-2008 - Prabha Sridevan and K.K. Sasidharan, JJ. Shri V. Sundareswaran, for the Petitioner. Shri Haja Nazirudeen, Spl. GP(T), for the Respondent. [Order per: Prabha Sridevan, J.]. - The assessee, inter alia, manufactures herbal shikakai powder. For the assessment year 1996-1997, additional sales tax at 2.25% on the taxable turnover as well as penalty were levied from the assessee. Against that, an appeal was filed. The question was whether the levy of additional sales tax at 2.25 % and the levy of penalty was sustainable. The appeal was partly modified and partly allowed. Before the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erbal (P) Ltd. and Others). In spite of these rulings in the assesee's own case, the Tribunal refused to entertain the new ground. The learned counsel submitted that the Tribunal can decide the issue on the basis of the records already available and facts before it and not on any fresh material. Learned counsel for the assessee also referred to the judgments reported in (2002) 253 ITR 202 (Commissioner of Income Tax v. Ashok Leyland Ltd.), 1998 (99) E.L.T. 200 (S.C.) = (1998) 229 ITR 383 (National Thermal Power Co. Ltd. v. Commissioner of Income Tax) and (2003) 132 STC 563 (Bhavani Tax Produce Co. Ltd. v. State of Kerala) to support his case and also referred to Section 36(3) of Tamil Nadu General Sales Tax Act, 1959. 3. Learned Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al involves a question of law on which the Appellate Tribunal has previously given its decision in another appeal and either a revision petition in the Special Tribunal against such decision or an appeal in the Supreme Court against the order of the Special Tribunal thereon is pending, the Appellate Tribunal may defer the hearing of the appeal before it, till such revision petition in the Special Tribunal or the appeal in the Supreme Court is disposed of. In 1991 (51) E.L.T. 176 (S.C.) = (1991) 187 ITR 688 (Jute Corporation of India Ltd. v. Commissioner of Income Tax), the Supreme Court held thus: (ii) An appellate authority has all the powers which the original authority may have in deciding the question before it subject to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich arise from the order of the Commissioner of Income-tax (Appeals). Both the assessee as well as the Department have a right to file an appeal/cross-objections before the Tribunal. The Tribunal should not be prevented from considering questions of law arising in assessment proceedings, although not raised earlier. The view that the Tribunal is confined only to issues arising out of the appeal before the Commissioner (Appeals) is too narrow a view to take of the powers of the Tribunal. Undoubtedly, the Tribunal has the discretion to allow or not to allow a new ground to be raised. But where the Tribunal is only required to consider the question of law arising from facts which are on record in the assessment proceedings, there is no rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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