TMI Blog1996 (8) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellate Tribunal by the assessee who is aggrieved by only a part of such order the Board of Revenue cannot exercise its revisional jurisdiction against the remaining part of that very order of the Appellate Assistant Commissioner which is in favour of the assessee and against the Revenue. Appeal dismissed. - Civil Appeal No.2295 of 1980 , 3442(N.T.)/83, 4550(N.T.)/84 - - - Dated:- 13-8-1996 - S.P. Bharucha and S.B. Majmudar, JJ. REPRESENTED BY : Shri V. Krishnamurthi, Advocate for M/s. Arputham, Aruna Co., for the Appellant. S/Shri S. Balkrishna and S. Prasad, Advocates, for the Respondent. [Judgment per : S.B. Majmudar, J.]. The aforesaid three civil appeals by special leave to appeal under Article 136 of the Constitution of India filed by the common appellant State of Tamil Nadu and the two special leave petitions also moved by the same State of Tamil Nadu and which are ordered to be tagged with the aforesaid civil appeals, raise a common question for our consideration. The common appellant, State of Tamil Nadu, in all these proceedings, seeks to challenge identical decisions rendered by different Division Benches of the Madras High Court impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to challenge that part of the order of the Appellate Assistant Commissioner which was in his favour and, therefore, the Tribunal was not seized of any inquiry regarding the validity of that part of the order. That part of the order, therefore, was outside the ken of the scrutiny of the Tribunal and consequently it could not be said that it was subject-matter of appeal before the Tribunal. Consequently the Board had ample power under Section 34 of the Act to examine the correctness of that part of the order. 3. Learned counsel for the respondent appearing in one of these matters, on the other hand, submitted that the High Court was justified in construing the sweep of Sections 34 and 36 of the Act which dealt with special powers of the Board of Revenue on the one hand and powers of the Appellate Tribunal on the other and in taking the view that once appeal is taken by the assessee before the Tribunal challenging that part of the order of the Appellate Assistant Commissioner which was against him the Tribunal would be seized of the entire matter and not in piecemeal and as the Tribunal has ample jurisdiction in appropriate cases even to enhance the assessment, of course, at the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1) of section 32 may, within a period of sixty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Tribunal : Provided that the Appellate Tribunal may admit an appeal presented after the expiration of the said period if it is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period. (2) The appeal shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed. (3) In disposing of an appeal, the Appellate Tribunal may, after giving the appellant a reasonable opportunity of being heard, (a) in the case of an order of assessment - (i) confirm, reduce, enhance or annul the assessment or penalty or both; (ii) set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed; or (iii) pass such other orders as it may think fit; or (b) in the case of any other order, confirm, cancel or vary such order : Provided that at the hearing of any appeal against an order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal or in revision before the High Court. It is pertinent to note that Section 34(2)(a) does not refer to any part of the order which only might be against the assessee. It refers to the order as a whole. Now the order of the subordinate authority, namely, the Appellate Assistant Commissioner can be wholly in favour of the assessee or can be wholly in favour of the Revenue or can be partly in favour of the assessee and can be partly in favour of the Revenue. In the first case, there will be no occasion for such an order to be carried in appeal or revision either before the Tribunal or before the High Court by the assessee. In such a case the Board of Revenue will have ample jurisdiction to exercise its suo motu revisional powers in scrutinising the correctness of the concerned orders of the subordinate authorities which are passed against the Revenue and the bar of Section 34(2)(b) would not get attracted. But in latter two cases such order of the Appellate Assistant Commissioner can certainly be made a subject-matter of grievance by the assessee before the Appellate Tribunal or even before the High Court in revision. So far as second type of order is concerned, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 36 sub-section (3)(a)(i) empowering the Appellate Tribunal to enhance the assessment or penalty in appeal by the assessee would obviously contemplate a situation where the Revenue being respondent in such appeal would seek such enhancement by filing cross objections. Of course, before deciding such a grievance put forward by the Revenue seeking such enhancement the appellant has to be given reasonable opportunity of being heard as contemplated by sub-section (3) of Section 36 itself. But subject to that procedural safeguard there is no prohibition against the Appellate Tribunal in considering the question of enhancement of assessment or penalty in an appeal preferred by the assessee against that part of the order of the Appellate Assistant Commissioner which is against him, if the Revenue as respondent in appeal seeks to get the other part of the order which is against it also re-considered by the Tribunal in exercise of its jurisdiction under Section 36(3)(a)(i). Consequently it must be held that once the order of the Appellate Assistant Commissioner is brought on the anvil of scrutiny of the Appellate Tribunal by the dissatisfied assessee by filing appeal against the adverse pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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