ASHWANI KUMAR MISHRA,J. - (1.) This revision is by the assessee questioning an order passed by the Tribunal dated 27th February, 2017, whereby the Tribunal has refused to entertain and examine the grievance of the assessee against the order dated 1.5.2014, passed by the first Appellate Authority, following the principle of merger. The order records that since the order dated 1.5.2014 was challenged by the department by filing appeal, as such, the order has now merged in the Tribunal's order and therefore, a subsequent appeal filed by the assessee would not be maintainable.
(2.) Learned counsel for the revisionist has relied upon an order passed by the Apex Court in Commissioner of Sales Tax v. Vijai Int Udyog, 1985 UPTC 131 , as well as an order of this Court in Commissioner of Sales Tax v. M/s Himalya Spun Pipe Co., 2007 All.H.C. 351 , in order to contend that the assessee and commissioner both have statutory rights to prefer an appeal, and the doctrine of merger would not be a bar in pursuing of remedy by any of the parties, on account of the fact that the appeal filed by the other party has been decided and that the issue had not been raised.
(3.) The records reveal that the Assessing Authority has considered the grievance of the revisionist on two counts, namely, reversal of input tax credit and enhancement of turnover. In the first appeal filed by the assessee, the issue of reversal of input tax credit alone was adjudicated, but the issue with regard to enhancement of turnover was not attended. Relief in respect of input tax credit was granted to the assessee. The department to such extent has preferred an appeal before the Tribunal. The assessee, subsequent in point of time made an application under Section 31 for rectification, on the premise that issue relating to enhancement of turnover had not been considered by the First Appellate Authority. This application has been rejected by the First Appellate Authority on the ground that its earlier order stands merged in the subsequent order of the Tribunal passed in appeal preferred by the revisionist.;