TMI Blog1996 (11) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... order, he treated the sales of Rs. 37,69,959 effected by the Bombay branch as inter-State sales of head office and accordingly imposed Central sales tax of Rs. 3,01,597 and interest and penalty of Rs. 4,50,000. Similarly, the goods worth Rs. 19,50,957.80 were transferred from head office to branch office, goods worth Rs. 5,74,928 were sent from branch to head office for job work and goods worth Rs. 12,02,647.75 were purchased by branch office and sold there. All these transactions were treated as inter-State sales by the assessing authority. Appeal before the Deputy Commissioner (Appeals), Jodhpur was filed. It was held that sales of Rs. 12,02,647.75 could not be treated as interState sales as they were purchased and sold by branch office at Bombay. Accordingly, tax of Rs. 96,211, interest of Rs. 73,120 and penalty of Rs. 4,50,000 imposed under section 16(1)(b) of the Act were set aside. Penalty of Rs. 20,000 was also set aside. Thereafter, second appeal was filed by the petitioner before the Rajasthan Sales Tax Tribunal, Ajmer (now Rajasthan Tax Board) (in short, "Tax Board"). By its order dated August 10, 1992, the orders of the Deputy Commissioner (Appeals), Jodhpur, as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the case was remanded. 5.. The learned counsel for the petitioner seriously opposed this application of the department. He contended that the case cannot be reheard on the grounds mentioned in the application. In the interest of justice and to render correct judgment, we allowed the parties to advance arguments before us afresh and arguments were advanced. 6.. The only question for considerations in this application for revision is whether the Rajasthan Tax Board, Ajmer, could set aside the order of the Deputy Commissioner (Appeals), dated March 27, 1992 by which the said amounts of tax, penalty and interest have been set aside and remand the entire matter for fresh assessment to the assessing authority despite the fact that no appeal was filed against the order of the Deputy Commissioner (Appeals) by the department. It is also not in dispute that no cross-objection was filed before the Tax Board by the department as provided under section 14(4) of the Act. 7.. By the application dated September 12, 1996, the department has tried to explain as to why the second appeal could not be filed before the Rajasthan Tax Board, Ajmer. Along with this application, a copy of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to 'confirm, reduce, enhance or annul the assessment or the penalty or both', to set aside the assessment and direct the assessing authority to make a fresh assessment after such further enquiry as may be directed, as also to pass such other orders as he may think fit. Similar powers are available even where the appeal is against an order other than an order of assessment. Section 31-A provides for an appeal to the Deputy Commissioner against the orders specified therein. Sub-section (3) of section 31-A confers powers upon the Deputy Commissioner similar to those conferred by section 31(3). Section 36 provides for an appeal to the Appellate Tribunal against the orders of the Appellate Assistant Commissioner as well as the Deputy Commissioner. Sub-section (3) of section 36 again is in the same terms as sub-section (3) of section 31 and sub-section (3) of section 31-A. The position under the Andhra Pradesh General Sales Tax Act is no different. Section 19 provides for an appeal to the specified authority. Sub-section (3) of section 19 [which corresponds to sub-section (3) of section 31 in the Tamil Nadu Act] reads: '(3) The appellate authority may, after giving the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is not proper and if he comes to that conclusion the only thing he can do is to set aside the assessment within the meaning of section 31(3)(b) of the Act and direct the Income-tax Officer to make a fresh assessment after making such further enquiry which the Income-tax Officer thinks fit or the Appellate Assistant Commissioner directs. The Appellate Assistant Commissioner has no jurisdiction to arrive at a determination of his own as to the method of accounting regularly employed by the assessee being such that the income, profits and gains of the assessee cannot properly be deduced therefrom. That is the function of the Income-tax Officer by the very terms of the proviso to section 13 itself and he cannot arrogate that function to himself. The powers of enhancement of the assessment conferred upon the Appellate Assistant Commissioner under section 31(3)(a) cannot be construed to mean that he can on his own exercise such power within the meaning of the proviso to section 13 even though the Income-tax Officer himself has not done so in the first instance." 10.. In the State of Kerala v. Vijaya Stores [1978] 42 STC 418 (SC), relied upon by the learned counsel for the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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