TMI Blog1978 (9) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... les Tax Act, 1963, to enhance the assessment in the absence of any appeal or cross-objections by the revenue ? The respondent-firm (M/s. Vijaya Stores) is a dealer in stationery having its head office at Cochin and branches at Ernakulam and Kottayam. For the assessment year 1965-66, the respondent-firm returned a total turnover of Rs. 25,54,974.58 and a net taxable turnover, after claiming exemptions, of Rs. 12,99,996.49. The STO rejected the book results on the basis of certain material gathered from a rough note-book detected and seized by the Inspecting Officer from the head office at Cochin; it was found that about 50% of the transactions recorded in that rough note-book were not entered in the regular books maintained by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Petition (being T.R.C. No. 59 of 1973) to the Kerala High Court contending that the Tribunal had no jurisdiction or power to enhance the assessment in the absence of an appeal or cross-objections by the department and prayed for quashing of the order. The Kerala High Court by its judgment and order dated April 11, 1975, accepted the contention of the respondent-firm and set aside the impugned order of the Tribunal and remanded the case for hearing the appeal of the assessee afresh in accordance with law and in the light of what it had said in its judgment; in doing so the High Court relied upon two decisions of the Bombay High Court in Motor Union Insurance Co. Ltd. v. CIT [1945] 13 ITR 272 and New India Life Assurance Co. Ltd. v. CIT [1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting to an order passed by the Appellate Assistant Commissioner under sub-section (3) of section 34 and any person objecting to an order passed by the Deputy Commissioner under sub-section (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 for not presenting the appeal within the said period. (2) The officer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders as it may think fit; or (b) in the case of any other order, confirm, cancel or vary such order." Considerable emphasis was laid by counsel for the appellant upon sub-s. (4) which indicates what things the Appellate Tribunal may do while disposing of an appeal and in particular it was pointed out that under sub-s. (4)(a)(i) the Appellate Tribunal has been given power "to enhance the assessment" while disposing of an appeal against an order of assessment after giving the party a reasonable opportunity of being heard and it was urged that such power could be exercised even when the appeal against the AAC's assessment order had been preferred by the assessee and not by the department. To place such a construction on sub-s. (4)(a)(i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 AAC'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 s. 39, therefore, it is clear that on a true and proper construction of sub-s. (4)(a)(i) of s. 39 the Tribunal has no jurisdiction or power to enhance the assessment in the absence of an appeal or cross-objections by the department. It is true that the two Bombay decisions reported in [1945] 13 ITR 272 and [1957] 31 ITR 844, on which the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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