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2016 (1) TMI 142

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..... s not raised in the appeal and set aside the order of the assessing authority. Appellate authority was not justified in remanding the matter for fresh assessment for considering those issues which were not subject matter of appeal before it. Consequently, the impugned order dated 30.3.2015 passed by the Tribunal as well as order dated 17.7.2014 passed by the DETC(A) for remanding the matter for fresh assessment are set aside and the matter is remanded to the first appellate authority to pass fresh order in accordance with law after hearing learned counsel for the parties - Matter remanded back - Decided in favour of assessee. - VATAP No. 11 of 2015(O&M) - - - Dated:- 18-9-2015 - Ajay Kumar Mittal And Ramendra Jain, JJ. For the Appellant : Mr. Sandeep Goyal, Adv For the Respondent : Mr. Jagmohan Bansal, Additional Adv General, Punjab JUDGMENT Ajay Kumar Mittal, J. 1. This order shall dispose of VATAP Nos.11 to 14 of 2015 as according to the learned counsel for the parties, the issue involved in all these appeals is identical. However, the facts are being extracted from VATAP No.11 of 2015. 2. VATAP No.11 of 2015 has been filed by the revenue under Sec .....

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..... (a) of the PVAT Act. The estimated value of stock transfer considered by the appellant included the cost of production and primary freight besides some portion of gross profit whereas other expenses like secondary freight, forwarding expenses, godown rent, administrative expenses and octroi etc. were left to be borne by the consignee branch. The tax was calculated on the said value at the rate of 4% and was reduced from the total overall exemption limit of the assessee which was available to it at the beginning of the year 2009-10. For the assessment years 2005-06 and 2006-07, similar methodology had been adopted by the appellant and was being accepted by the respondents. Before the Assistant Excise and Taxation Commissioner, detailed submissions had been made by the assessee to the effect that only the value of goods at factory gate and primary freight can be considered to be the estimated value of the goods stock transferred on which the notional tax was to be calculated at the rate of 4%. Accordingly, the designated Officer vide order dated 31.1.2013, Annexure A.1 calculated the tax on the cost of goods at factory gate plus primary freight. However, while doing so, he had includ .....

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..... or passing fresh assessment order after considering the issues which were not assailed by the assessee. Support was drawn from judgments in State of Haryana vs. Frick India limited, (1990) 76 STC 148 (P H), Global Business India Pvt. Limited vs. State of Haryana (2013) 45 PHT 439 (P H) and State of Kerala vs. M/s Vijaya Stores, (1978) 4 SCC 41 to urge that it was not within the domain of the first appellate authority to have remanded the matter on which the assessee was not aggrieved. The revenue had other remedies open in case the order was found to be not in consonance with law. 6. On the other hand, learned counsel for the State besides supporting the impugned order submitted that the revisional authority for the assessment year 2007-08 had initiated revisional proceedings but had dropped them in the light of the order of the first appellate authority. Thus, a prayer was made for revival of the revisional proceedings. 7. The matter is no longer res integra. In State of Haryana vs. Frick India Limited, (1990) 76 STC 148, the question for consideration was whether the appellate authority was competent to go into the matters which were not raised in appeal and direct examinat .....

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..... appellate authority to examine the impugned orders and to judge and determine their legality and propriety. Any party aggrieved by any order passed by an authority exercising jurisdiction under the Act or the Rules, may file an appeal against that order raising its grievances and pleas challenging the legality and propriety of the order. Whatever pleas are raised by a party in its appeal, are examined by the appellate authority and a decision is rendered thereon affirming by varying, amending or rescinding the impugned orders or remanding the case for fresh decision. This jurisdiction, however, can be invoked only on appeal filed by a party. The Deputy Excise and Taxation Commissioner in contradistinction of the Commissioner has not been invested with powers to act on his own motion. Only when an appeal is filed, the appellate authority adjudicates upon the specific issues raised in the grounds of appeal or those which are urged before it, at the time of hearing. The respondent is also given an opportunity of hearing and replying to the points raised and urged by the appellant. Further, the judgment in Frick India Limited's case (supra) was followed by this Court in Globa .....

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..... t be taken to have acquiesced therein 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) (t) above. In other words, in the absence of an appeal or cross-objections by the Department against the Appellate Assistant Commissioner's order the Kumar Vimal Appellate Tribunal will have no jurisdiction or power to enhance 2013.04.26 12:24 I attest to the accuracy and integrity of this document Chandigarh VATAP Nos.123 122 of 2012 -8- the assessment. Further, to accept the construction placed by the counsel for the appellant on sub-section (4) (a) (i) would be really rendering sub-section (2) of Section 39 otiose, for if in an appeal preferred by the assessee against the Appellate Assistant Commissioner's order the tribunal would have the power to enhance the assessment, a provision for cross-objections by the Department was really unnecessary. Having regard to the entire scheme of Section 39, therefore, it is clear that on a true and proper construction of sub-section (4)(a)(i) of Section 39 the Tribunal has no jurisdiction or power to enhance the assessment in the ab .....

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..... y Commissioner under subsection (1) of section 35, and any person objecting to an order passed by the inspecting Assistant Commissioner under clause (c) of sub-section (4) of section 28 may, within a period of sixty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Tribunal; Provided that the Appellate 'Tribunal may admit an appeal presented after the expiration of the said period if it is satisfied that the appellant had sufficient cause t`or not presenting the appeal within the said period. (2) The officer authorised under sub-section (1) or the person against whom an appeal has been preferred, as the case may be on receipt of notice that an appeal against the order of the Appellate Assistant Commissioner has been preferred under sub-section (1) by the other party, may, notwithstanding that he has not appealed against such order or any part thereof, file, within thirty days of the receipt of the notice, a memo random of cross-objections, verified in the prescribed manner against any part of the appellate Assistant Commissioner, and such memorandum shall be disposed of by the Appellate Tribuna .....

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..... rious powers conferred upon the Appellate Tribunal while disposing of such appeals (including cross objections) and the power conferred upon the Appellate Tribunal under s. 4(a)(i) is to confirm, reduce, enhance or annul the assessment ; the power to enhance the assessment must be appropriately read as relatable to an appeal or crossobjections filed by the Department. The normal rule that a party not appealing from a decision must be deemed to be satisfied with the decision, must be taken to have acquiesced therein 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-s.(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. Further, to accept the construction placed by the counsel for the appellant on sub-s. (4)(a)(i) would be really rendering sub-s. (2) of s. 39 otiose, for if in an appeal preferred by the assessee against the Appellate Assistant Commissioner's order the tribunal would have the power .....

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