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TMI Blog2016 (6) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... f convenience. 3. The short case of the appellants appears to be that on 30th July, 2007, the impugned order was passed by the DCCT(Audit) for accepting the monthly return for the period from April, 2005 to August, 2005 and the refund was allowed to the appellant as claimed in t he returns. In the same manner for the period from September, 2005 to March, 2006, the returns filed by the appellant - assessee were accepted. 4. The revision proceedings were initiated against the aforesaid acceptance of returns in purported exercise of the power under Sec. 66A of Karnataka Value Added Tax, 2003 (herein after referred to as the KVAT Act) for the reassessment of the period from April, 2005 to August, 2005. After verification, vide order dated 26- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod April, 2005 to March, 2006. The assessee against the aforesaid demand of tax, preferred appeal before the first appellate authority i.e. the Joint Commission er (Appeals). The first appellate authority, vide order dated 25-04-2011, partly allowed the appeal by allowing the deduction of consideration received towards sale of undivided share in land in respect of land owner's share of receipts, but not in respect of consideration received for the sale of undivided share in land in flats sold falling to the share of the assessee. 6. The matter was further carried in second appeal before the Tribunal, so far as not granting of relief by the first appellate authority. There was no cross appeal preferred by the Revenue before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinafter referred to as 'the Tribunal' for brevity), we find it appropriate to consider the said group at the first stage. 10. The perusal of the order passed by the Tribunal more particularly from the reasons recorded shows that the Tribunal has not properly considered the following aspects which were crucial while exercising the appellate power :- 1. All appeals were preferred by the assessee against the order of the first appellate authority and it would mean that they would be restricted to the relief not granted by the first appellate authority in favour of the assesee. So far as reliefs which were already granted by the first appellate authority, naturally, the petitioner could not be said to be aggrieved and if any person who ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commercial Taxes in exercise of the revisional power (which is subject matter of STA Nos.46/2014 and 47-57/2014), when the assessment was to be made under Section 39(1) of the KVAT Act, it was obligatory on the part of the assessing authority not only to issue notice, but to further consider the submissions and to give opportunity of hearing to the assessee before any final order of assessment is passed. As per the assesee in the present case, notice under Section 39(1) of the KVAT Act, was issued. The asessee appeared in response thereto and the books of accounts were produced but thereafter without giving any opportunity of hearing, the order came to be passed for the assessment making demand. Therefore, it was required for the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner-appellant is considered as limited to the grievance raised by the petitioner-appellant so far as not granting the relief by the first appellate authority, all other observations on the part of the Tribunal can be said as exceeding the jurisdiction. It is true that in exercise of the appellate power under Section 63 of the Act, the Tribunal has the jurisdiction to pass order as it thinks fit. However, such jurisdiction is to be read to the extent of subject matter brought before it and it cannot be read beyond the subject matter of the appeal. Further, even if the Tribunal was of the view that the order passed in favour of the petitioner-appellant by the first appellate authority was without jurisdiction, then also two courses were ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g further observations in the operative portion, one may say that the Tribunal has exceeded the jurisdiction. In view of the aforesaid observations and discussion, we find that the impugned order passed by the Tribunal deserves to be set aside and the matter is required to be remanded to the Tribunal to examine the matter in light of the scope and ambit of the appeal and also in light of observations made by this Court in the present judgment. 14. Hence, ordered accordingly. 15. The Tribunal is directed to consider and hear t he appeals as early as possible preferably within a period of three months from the date of receipt of a copy of the order of this Court. 16. All the petitions are allowed to the aforesaid extent. No order as to cos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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