- (1.)TWO revisions have been filed against two separate orders of the Dy. Commissioner, Commercial Taxes (Appeals) Jaipur dated 18-3-1966. A preliminary point is to be decided and for reasons given below one order will govern it in both the files.
(2.)THE relevant facts are that the assessing authority, Commercial Taxes Officer, A Circle, Jaipur created certain demands against assessee firm M/s. Gappulal Damodharlal by two orders passed in two files. THE firm preferred two appeals before the Deputy Commissioner and succeeded partially. Not satisfied the firm has presented two revisions before the Board of Revenue. During the arguments the Advocate for the revisionist referred to certain points which had been mentioned in the memo, of appeal submitted to the Dy. Commissioner, but had (not been pressed before him.
The Government Advocate objected that these points cannot now be argued before us. The instant order will only deal with this question which is common to both the cases, i. e. , can the points mentioned in the memo of appeal before the Dy. Commissioner, but not pressed before him be now agitated in these revisions.

We have heard the Advocate for the assessee firm and the Government Advocate and also perused the record. Shri B. K. Singhal was allowed to argue as amicus curiae. The Advocate for the revisionist and Shri Singhal cited the following rulings - 1955 S. T. C. page 212 - It is held in it that the giving of a reasonable opportunity of being heard u/s. 13 (5) of Bihar Sales Tax Act is mandatory and without this being done, the Sales Tax Officer had no jurisdiction to impose a penalty on an assessee. This rule has no direct application. 1968, 21, S. T. C page 174 - This is also not fully relevant, it holds that no one can be penalised without a proper inquiry. 1946 I. T. R. page 325 - In this it is held that there can be no waiver of a notice u/s. 34 of the Income Tax Act as such notice is a condition precedent for the exercise of jurisdiction to assess under the section. The want of notice affects the jurisdiction of the Income Tax Officer to proceed with the assessment. If the defect of jurisdiction is apparent on the face of the record, the High Court will not refuse relief to the petitioner even on the ground of acquiescence. The spirit of this ruling applies to the present case.

Unreported Rajasthan High Court Judgment in Brahmdutt vs. Sales Tax Officer decided on 26-8-66. This holds' that a valid notice is a condition precedent to assumption of jurisdiction by the assessing authority and this question cannot be waived. Further that even if the assessee does not challenge the validity of such proceedings, they will remain vitiated on account of fundamental uniformity.

The sense of this ruling is applicable to the present case. 1967 Volume 66 I. T. R. page 710 - This holds that u/s 33 (4) of the Income Tax Act the appellate tribunal is competent to pass such orders on appeal 'as it thinks fit'. If for reasons recorded by the departmental authorities in respect of a contention raised by the assessee, grant of relief to him on another ground is justified, it would be open to the departmental authorities and the tribunal, and indeed they would be under a duty, to grant that relief. The right of the assessee to relief is not restricted to the plea raised by him.

The application of this rule is indirect, but relevant. Sec. 14 (2) of the Rajasthan Sales Tax Act states that the Board of Revenue can pass an order 'as it thinks fit' in a revision, the same language as in the relevant provision of Income Tax Act.

The Government Advocate cited A. I. R. 1968 Kerala page 14 - The relevant portion if it lays down - " (2) In view of the decision in Mckenzies Ltd. vs. State of Maharashtra, 1965 - 16 S. T. C. page 518 SC the contention that the contracts for building of bodies are only in execution of works was not pressed before the appellate tribunal. The appellate tribunal observed thus: "the appellants' learned Advocate submitted that he does not press the contention that cost of body building would amount to works contract in view of the decision of the Supreme Court in 1965 - 16 S. T. C. 518 (SC ). In view of the above statement, it is not open to the petitioners to raise the contention before us that the contracts relating to the building of bodies are not contracts of sale but merely for performance of service. "

We have considered the matter. Many rules cited by the revisionist do not apply, as has been seen, and these which relate to the cases do so not absolutely and in so many words but the general sense helps him. It has been held that even if the assessee does not challenge the Tightness of an order, it should be set aside if it is illegal.

The Government Advocate stated that in 1946 I. T. R. 325 there was lack of jurisdiction. This is right, but in the case decided by Rajasthan High Court it is held that want of challenge would not validate proceedings which are wrong.

In the Kerala case as seen above, the point which was raised before the appellate tribunal was specifically given up, whereas in the instant cases, the points raised were not pressed, a very different matter. Sec. 14 (2) of the Rajasthan Sales Tax Act reads as below: " (2) The Board of Revenue may on application for revision of an order not being proceedings under the provisions to sub-sec. (3) of sec. (11) by a dealer under this Act, made within six months of the date of the order, call for the record of the proceedings in which the order complained against was passed and after examining the record, subject to the provisions of this Act, pass such order not prejudicial to the assessee, as it thinks fit. " The discretionary power, which of-course has to be exercised judicially, vests by the legislature in the Board of Revenue is a wide one and we think that if not pressed, though mentioned in the memo, of appeal, before the appellate authority are gone into before us, no provisions of the law applicable to Rajasthan are violated. Further it is clear that the idea of sec. 14 (2) is that any wrong proceeding can be set aside in revision. This can hardly be done till all the points are fully argued.

We, therefore, direct that subject to payment of cost of Rs. 25/- (in both the cases) it shall be open to the Advocate for revisionists to argue before us on the points mentioned in memo of appeal but not pressed before the Deputy Commissioner. The cases may now be listed for hearing on some future date. .

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