STATE OF ANDHRA PRADESH Vs. VENKATA RAMA LINGESHWARA RICE MILL BHIMAVARAM

JUDGEMENT

(1.) The petitioner in all these revision petitions is the State of Andhra Pradesh. The respondent in T.R.C.No. 23 of 1974 who were dealers in paddy and rice were assessed for the year 1965-66 by the CommercialTax Officer, Bhimavaram under the Central Sales Tax Act after allowing exemption on a turn-over of Rs. 13,98,758-78. The respondent preferred an appeal to the Assistant Commissioner (Commercial Taxes), Kakinada disputing the assessment on a turnover of Rs 1,06,410-06 comprising of several items The Assistant Commissioner partly allowed the appeal and the orders of the Assistant Commissioner were given effect to in the Commercial Tax officer's proceedings d/27-7-1968 refixing the net turnover as Rs. 16,98,933-57 and this turnover was subjected to tax at 1% as it related to inter-State sales of Rice. The Deputy Commissioner, Kakinada on examination of the assessment records noticed that the assessing authority taxed inter-State sales of rice at 1 % whereas these turnovers had to be taxed at 1 Further, he was of the view that the exemption granted by the assessing authority on a turnover of Rs.30,182 66 relating to inter State sales of gunnies was irregular and contrary to the provisions of the Act. He therefore, brought those turnovers to tax, the inter-State sales of rice at % additional tax and the inter-State sales on gunnies at 2%, The respondent preferred an appeal to the Sales Tax Appellate Tribunal against the revisional order ofthe Deputy Commissioner In this appeal he not only questioned ihe above order of the Deputy Commissioner but also sought to question the original order of assessment on the ground that exemption was not granted to him on a turnover of Rs. 16,98,933-57 as it represented the value of rice supplied to the Food Corporation of India and those transactions were not tenable. The State representative contended that, the petition for raising this additional ground could not be allowed as the assessment of turnover had become final. But the Tribunal following the decisions of this Court in Thippanna Rayappa v. Government of Andhra (1) 8 STC P.660) and Overseas Mica Exoprts v. Secretary, S.T. Appe'late Tribunal (2) 25 STC p. 425) held that it has jurisdiction under section 21 (4) (ii) of the Andhra Pradesh General Sales Tax Act (referred to in this judgment as the Act , to take into consideration the entire law and facts at the time of hearing of the appeal and allowed the petitioner to raise additional grounds. In view of the decision in Chigurupathi Veerannav. SPL. Commercial Tax Officer (3) 28 STC. p. 388) etc., it observed that the essential ingredients of the transfer of property in goods under a valid contract of sale had to be verified by the assessing authority and remanded the case to the assessing authority for fresh disposal. In this revision petition by the State it is contended inter alia that the Tribunal was not justified in allowing the assessee to question in an appeal filed against an order on revision by the Deputy Commissioner under Sec. 20 of the Act that a portion of the original order of assessment against which no appeals were filed before the Assistant Commissioner. That had become final and cannot be re-opened by the Tribunal in an appeal against the order of the Deputy Commissioner under sec. 20. The Tribunal was not competent to entertain an appeal directly against a portion of the assessment order which was not the subject-matter of the appeal before the Asst. Commissioner. In T.R.C. No. 24/74 the facts are almost identical though the assessee is different. In TRC 25/74 the respondent was assessed on purchase of paddy on a turnover of Rs. 1,62,727-05 at 4%. In the appeal before the Asst. Commissioner he did not dispute the rate of tax. The Asst. Commissioner partly allowed the appeal on a turnover of Rs. 9.COO. In the appeal against the order of the Asst. Commissioner to the Tribunal the respondent sought to question the rate of tax for the first time. This was objected to by the State representative on the ground that the assessment had become final. The Sales Tax Appellate Tribunal, however, held that it had jurisdiction under sec. 219 (4) (ii) to take into consideration the entire law and facts at the time of hearing of the appeal. They however held that as this point had not been raised before the assessing authority and the Asst. Commissioner, the matter had to be remanded to the assessing authority for fresh disposal. In the revision petition filed by the State, contentions identical to that raised in T.R.C. 23 and 24/74 were advanced.

(2.) All these revision cases were heard in the first instance by Kondaiah and Gangadhara Rao, J.I. The learned Government Pleader relied upon two bench decisions of this court in T.R.C. 53 of 1967 dated 19-11-1970 and Kaliki Veera Reddi & Co., V. State of A.P. (4) 34 STC. p. 517) as well as other decisions of the Madras High Court in support of his contention that the Tribunal had no jurisdiction under sec. 21 of the Act to consider thai portion of the original order of assessment against which no appeal had been filed and had become final and it was not open to prefer an appsal directly against that part of the assessment which was not the subject matter of an appeal before the Asst. Commissioner. It was contended that the decisions of this court in Thippanna Rayappa V. Govt of Andhra (1) supra, Overseas Mica Exports v. Secretary,S.T. Appellate Tribunal 2) supra, on which the Tribunal had placed reliance were not correctly decided. Kondaiah and Gangadhara Rao, JJ. observed that there was an apparent conflict between the bench decision of this court in Thippanna Rayappa V. Govt. of Andhra (1) supra, and the decisions in T.R.C. 53/67 datew 19-11-1970 and Kaliki Veera Reddi & Co. V. State of A.P. (4) (supra) which has to be resolved by a Full Bench and therefore referred these revision petitions to a Full Bench.

(3.) The common question for consideration in these revisions is whether in an appeal before the Tribunal against an order of the Appellate Assistant Commissioner in an appeal under sec. 19 or against the order of the Deputy Commissioner in revision under section 20 of the Andhra Pradesh General Sales Tax Act (referred to in this judgment as the Act) has jurisdiction to interfere with that portion of the assessment order which was not the subject-matter of an appeal by the assessee before the Asst. Commissioner.