TMI Blog1993 (2) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... sulted in extra demand of Rs. 9,950. The turnovers returned were not accepted and the gross turnover was determined by adding Rs. 2 lakhs to the disclosed purchases, and adding 15 per cent thereto. The petitioner carried the matter in appeal before the ACST. The said authority reduced the enhancement being of the view that the enhancement of the disclosed purchases by a margin of Rs. 1 lakh to cover up the suppressions would meet the ends of justice. Accordingly the petitioner was granted a tax relief of Rs. 4,557. The petitioner carried the matter in further appeal before the Tribunal. From the records of the Tribunal, we find that the appeal was admitted on April 4, 1992. Notice was directed to be issued to the respondent, State of Orissa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned counsel for the Revenue on the other hand supported the order on the ground that the Tribunal has a power of enhancement in terms of section 23(3)(c). 4.. Section 23(3) which is relevant reads as follows "23. Appeals and revision(1) and (2)...... (3)(a) Any dealer or as the case may be, the State Government, dissatisfied with an appellate order made under sub-section (2) may within sixty days from the date of receipt of such order prefer an appeal in the prescribed manner to the Tribunal against such order: Provided that an appeal under this clause may be admitted after the aforesaid period of limitation, if the Tribunal is satisfied that the appellant had sufficient cause for not preferring the appeal within such peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relatable to an appeal or cross-objection filed by the Revenue. The normal rule that a party not appealing from a decision must be deemed to be satisfied with the decision, has to be taken to have acquiesced therein and must be bound by it, and, therefore, cannot seek relief against a rival party in an appeal preferred by the latter, has not been deviated from in section 23(3)(c). The Tribunal has no jurisdiction or power to enhance the assessment in the absence of an appeal or cross-objection by the Revenue. Considering an almost identical provision of the Kerala General Sales Tax Act, 1963, the apex Court held in State of Kerala v. Vijaya Stores [1978] 42 STC 418 (SC); [1979] 116 ITR 15, that undoubtedly the Tribunal has been given the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f which enhancement is proposed. On being so indicated, the assessee shall be in a position to show cause against the proposed action. The narration of facts as referred to by the Tribunal go to show that no opportunity was granted to the assessee-petitioner to show cause against the proposed action for enhancement. This is really of no consequence in the case at hand because of our conclusion that the Tribunal has no power to enhance the assessment in the absence of an appeal or cross-objection. Therefore, the Member was not justified in directing restoration of the enhancement made by the assessing officer. That part of the order is nullified. 7.. Normally we would have left the parties to work out their remedies in a reference applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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