9911796707
TMI Blog2015 (12) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... aken either by the petitioner or by opposite party No. 1-Commissioner of Commercial Taxes, Odisha, Cuttack have been considered and the order passed by opposite party No. 3-Sales Tax Officer, Rourkela-I Circle, Rourkela (for short, "STO-Rourkela") has been confirmed illegally. 2. Mr. D. Pati, learned counsel for the petitioner, submitted that the petitioner is a proprietorship concern and is carrying on business in manufacturing and sale of corrugated cardboard boxes. The manufacturing unit of the petitioner is situated at CTS-34 Market, Basanti Colony, Rourkela, Dist: Sundargarh. The additional place of business is running at Rayagada in the name and style of "S. R. M. Industry". Opposite Party No. 3-STORourkela examined the books of acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessing officer and accordingly passed the first appellate order under annexure 3. Being aggrieved by the first appellate order, the petitioner filed the second appeal before the opposite party No. 2-Tribunal. Before the learned Tribunal, the petitioner raised dispute about the enhancement of turnover by two per cent. of the gross sale of the finished product towards sale of paper scrap and determination of sale price thereof. Opposite party No. 2, after receipt of the appeal memo filed by the petitioner, issued notice to opposite party No. 1 for filing of memorandum of cross-objection in terms of rule 57 of the Orissa Sales Tax Rules. Opposite party No. 1 has not filed any memorandum of cross-objection. It has also not filed any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any appeal or cross objection filed by the Revenue, the learned Sales Tax Tribunal is justified to restore assessment order disallowing the relief granted by the first appellate authority to the dealer-petitioner while adjudicating the appeal filed at the instance of the dealer-petitioner ? 6. Undisputed facts are that the petitioner was assessed to extra tax demand of Rs. 1,78,396 by opposite party No. 3-STO for the year 2002-03 vide annexure 2. The first appellate authority allowed the appeal filed by the petitioner in part by reducing the assessment basically on two grounds, i.e., the same turnover cannot be taxed twice and therefore, the petitioner is entitled to adjustment of tax of Rs. 1,04,733 already paid in respect of turnover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 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 sub-section (4)(a)(i) above. In other words, in the absence of an appeal or cross-objections by the Department against the Appellate Assistant Commissioner's order the Appellate Tribunal will have no jurisdiction or power to enhance the assessment 9. The honourable Supreme Court in the case of Reckitt & Colman of India Ltd. v. Collector of Central Excise [1996] 88 ELT 641 (SC), held that it is beyond the competence of the Tribunal to make out in favour of the Revenue a case which the Revenue had never canvassed and which the appellants had never been required to meet. 10. This court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that in absence of any appeal or cross-appeal by the Revenue, the Tribunal ought not to travel beyond the dispute raised by the petitioner in its appeal. Therefore, the Tribunal should not have disallowed the relief granted to the petitioner by the first appellate authority by restoring the assessment order when the Revenue has no grievance against grant of such relief to the petitioner by the first appellate authority. 14. For the reasons stated above, the impugned order dated August 11, 2010 passed by opposite party No. 2-Tribunal in SA No. 1539/2004-05 is not sustainable in law and is liable to be quashed and accordingly, we quash the same. Opposite party No. 2-Tribunal is directed to re-hear SA No. 1539/2004-05 on the issue(s) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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