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TMI Blog1957 (2) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... as been passed, can hardly be determined without stating some facts of the case. It appears that the assessee had disputed before the Commercial Tax Officer the liability to pay sales tax only on two sums of Rs. 20,558-4-9 and Rs. 47,240-1-6, and before the Appellate Tribunal the disputed sum in the turnover was further limited to Rs. 47,240-1-6. The petitions were filed to enable raising objections against the liability to sales tax on a higher turnover of Rs. 2,77,009-1-7. It was stated in petition No. 225 of 1955 that the assessee had instructed his representa- tive before the Commercial Tax Officer to object to the entire turnover being made liable to pay the tax; but that his representative was prevented by the officer from pleading th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this revision against the order: "Can an assessee in his appeal to the Appellate Tribunal against the order by the Commercial Tax Officer be permitted to object to his liability in respect of an amount of turnover that was not disputed before the Commercial Tax Officer?" It is well to remember that the powers of appellate authority may be of two kinds: it may be given jurisdiction of merely correcting errors in the decisions of the Subordinate Courts, or it may enjoy the powers by way of rehearing the entire case. In the latter case, the appellate Court can make such order as the Judge of first instance could have made. In this connection, the following observation of Lord Gorrel in Attorney-General v. Birmingham, Tame and Rea Distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer of an Appellate Tribunal in a tax- ing statute may be also of an extensive character so as to constitute the authority a Court with power to rehear the case. In Kamakshya Narain v. Income-tax Commissioner, Bihar and OrissaA.I.R. 1955 Pat. 179. , it was held that the powers conferred on the Tribunal under section 33(4) of the Income-tax Act are of an extensive character and that authority was competent to take into account legislative changes since the decision in appeal was given, and these powers were not confined only to see whether the lower Court's decision was correct according to the law as it stood. The learned Judges observe at page 181: "It is clear that the powers conferred on the Tribunal under section 33(4) are of an extensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section runs as follows: "12-A. Appeal to the Appellate Tribunal.-[1955] 6 S.T.C. 446. Any assessee objecting to an order relating to assessment passed- (i) by the Commercial Tax Officer whether on appeal under sec- tion 11 or suo motu under section 12, sub-section (1), or (ii) by the Deputy Commissioner suo motu under section 12, sub- section (2), may, if the assessee has not preferred an application for revision of the order under section 12, sub-section (2), or under sub-section (3) of that section, as the case may be, appeal to the Appellate Tribunal within sixty days from the date on which the order was communicated to the assessee. (2) (3) The appeal shall be in the prescribed form, shall be verified in the prescribed manner and shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the sub-section is construed as enabling the Tribunal to rehear the case, the power to direct amendment of pleading follows, and relief could be given after the memo- randum has been appropriately amended. The other objection to construing section 12-A(4) as conferring wide powers on the appellate authority is the decision in the case of Kalam Somasundaram Chettiar & Sons v. The State of Madras[1955] 6 S.T.C. 304. . Therein, the learned Judges have laid down three propositions and the first of them has been made the basis of the Tribunal's order under this revision. That proposition reads as follows: "[1955] 6 S.T.C. 304. The Appellate Tribunal have no authority to add a new item to the turnover and include therein what was not before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficulties arise, they can be adjusted by directing necessary amendments. The jurisdiction to make just orders being there, whether it should be exercised in the particular circumstances is a matter of discretion. Therefore, the proposition relied on by the Tribunal is no authority for the view that it has taken. Evidently, the appellant in the case before the Tribunal was invoking the power of passing just orders and the Tribunal has erred in rejecting the petitions on the ground of absence of jurisdiction. Of course, the Appellate Tribunal has the discretion to disallow the amendments, but the merits of the two petitions have not yet been gone into. We, therefore, answer the question formulated earlier in this judgment in the affirmati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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