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TMI Blog2014 (7) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... ess the escaped turnover. 2. The Deputy Commissioner of Commercial Taxes passed the assessment order for the year 2002-03 rejecting the returns filed by the assessee. Aggrieved by the said order, the assessee preferred first appeal before the Joint Commissioner of Commercial Taxes. The appeal was dismissed confirming the order passed by the Assessing Authority. The said order became final. Subsequently, the Deputy Commissioner of Commercial Taxes noticed certain escapement of taxable turnover in the original assessment order. Therefore, he initiated proceedings under section 12A of the Act for re-assessment. Notice was issued. The assessee entered appearance and opposed the re-assessment. After hearing him, re-assessment order was passed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal, without properly appreciating the doctrine of merger, nor the judgment of the Apex Court which was relied upon, has set aside the orders passed by the lower authorities on the short ground which is ex-facia illegal and error apparent on the face of the record. 4. Per contra, learned counsel for the assessee submitted that when once an assessment order was the subject matter of an appeal and the Appellate Authority has decided the appeal on merits, the original order of assessment merges with the order of the Appellate Authority. There was no original order of assessment which was in existence for the assessing officer to exercise the jurisdiction under Section 12A of the Act. 5. Both the learned counsel relied on several judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed by the assessee against the said order. After hearing the assessee, the Assessing Authority revised the assessment holding that he is not entitled to any exemptions. Aggrieved by the said order, the assessee preferred an appeal which also came to be dismissed. It is against that order, the second appeal was filed before the Tribunal. The question before the Tribunal was whether the Assessing Authority was justified in disallowing those exemptions. However, the Tribunal, without going into the merits, allowed the appeal on the ground that once an appeal has been filed against the assessment order, the Assessing Authority had no jurisdiction to initiate proceedings under section 12A to re-assess, as the original assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods (battery plates) under entry 73-B of the Second Schedule. The Deputy Commissioner initiated proceedings under section 21 proposing to tax the goods under the said entry 73-B and subsequently upheld the original order of assessment holding it to be taxable under section 5(1), on the ground that the goods were not covered by entry 73-B. The Commissioner proposed to revise this order on the same ground and roped in the goods into entry 73-B. Therefore, the subject-matter of the first revisional proceedings is the same (which was also the subject-matter considered by the assessing authority earlier), it has to be held that there was fusion or merger of the two orders thereby the original order of assessment losing its identity." 8. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter." 9. Therefore, it is clear, the application of doctrine of merger depends on the nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge led or capable of being led, it shall be determinative of the applicability of merger. If the subject matter of the original proceedings is not the subject matter of the appellate proceedings, the doctrine of merger has no application. Then, if on that aspect the original order is to be modified or altered, the power is conferred on the original authority to do so. The said authority is at liberty to initiate proceedings for modification or alte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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