V. K. SINGHAL, J. - (1.) THE assessing authority has raised the following two questions of law arising out of the order of the Sales Tax Tribunal under section 15 of the Rajasthan Sales Tax Act, 1954 : (1) Whether, new plea could be raised before the Rajasthan Sales Tax Tribunal for the first time ? (2) Whether, the Tribunal was right in holding that no assessment could be made under section 10 of the Act in the present case ? Brief facts of the case are that the assessment for the period April 1, 1973 to March 31, 1974, was finalised on October 30, 1981 under section 10 (1) (b) of the Rajasthan Sales Tax Act (hereinafter called as "the Act" ).
(2.) IN the appeal before the Deputy Commissioner (Appeals) partial relief was given to the assessee and thereafter, the matter was taken to the Board of Revenue. Then the matter was taken up before the Rajasthan Sales Tax Tribunal and a legal question was raised that since the assessee has not filed the return, the assessment should have been framed under section 12 of the Act. The Sales Tax Tribunal accepted this plea and quashed the assessment order. I have considered over the arguments. The provisions of section 10 (1) (b) have been amended in 1967 when there was a restriction of assessment in respect of the previous year only. After the word "previous year" was deleted under section 10 (1) (b) the assessment could have been framed either under section 10 (1) (b) or under section 12 of the Act. This Court has taken the view in the case of Arbind & Company v. State of Rajasthan [1979] 43 STC 430 that if no returns have been submitted, then it will be considered to be a cast of escaped assessment. The Supreme Court in the case of Anandji Haridas and Co. (P) Ltd. v. S. P. Kushare, Sales Tax Officer [1968] 21 STC 326 have considered this matter and have held that if there are two provisions for making assessment then the assessing authority may proceed under either of the two. Though in a case where returns have not been filed, it may be considered to be a case of escaped assessment, but that would not take away the jurisdiction of the assessing authority to frame assessment under section 10 (1) (b ). In Commercial Taxes Officer v. Rajasthan State Agro Industries Corporation [1991] 82 STC 321, this Court has taken the view that the jurisdiction remains under both the sections and the Tribunal was wrong in observing that the assessment could be made only under section 12 of the Act. I am also in agreement with the view taken by this Court and it is held that the order of the Sales Tax Tribunal is not in accordance with law. So far as the second question, whether a new question can be raised for the first time before the Sales Tax Tribunal, the matter was considered by this Court in the case of State v. Mehboob Ali (D. B. Civil S. T. Reference No. 22 of 1965, decided on December 10, 1968), wherein it was held that the Board of Revenue after examining the record may pass such an order as it thinks fit and there is nothing in section 14 or any other section of the Act restraining the powers of the Board of Revenue passing order in revision. It has full discretion to pass any order as it thinks fit. Such order may be passed on any new argument addressed to the Board of Revenue. It cannot be said as a matter of law that the Board of Revenue cannot entertain any new ground for exemption raised by the assessee for the first time before it.
(3.) IN State of Orissa v. Babu Lal Chappolia [1966] 18 STC 17, it was held by the Supreme Court, that if the appellate authority had power to allow new ground to be taken, it did not matter in what manner it is allowed or to be taken. INstead of revised return, it could have been taken in a written statement containing new ground and, therefore, the submission of revised return before the appellate authority was held within its jurisdiction. The Supreme Court in Commissioner of Income-tax v. Mahalakshmi Textile Mills Ltd. [1967] 66 ITR 710 has held that the phrase "as it thinks fit" nowhere restricts the determination of question raised before the departmental authorities. All questions whether of law or facts, which relates to the assessment of the assessee may be raised before the Tribunal. 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 to the Tribunal and indeed they would be under duty to grant that relief. The right of the assessee to relief is not restricted to the plea raised by him. The honourable Supreme Court in Jute Corporation of India Ltd. v. Commissioner of Income-tax [1991] 187 ITR 688 has observed that the appellate authority has all power, which the revisional authority may have in deciding the question before it subject to restrictions and limits, if any, prescribed by statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all preliminary powers, which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining the additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer. ;