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 Commercial Tax Officer, Bhimavaram, under the Central Sales Tax Act after allowing exemption on a turnover 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 dated 26th July, 1968, refixing the net turnover as Rs. 16,98,933.57 and this turnover was subjected to tax at 1 per cent 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 per cent whereas these turnovers had to be taxed at 1 1/4 per cent. 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 1/4 per cent additional tax and the inter-State sales of gunnies at 2 per cent. The respondent preferred an appeal to the Sales Tax Appellate Tribunal against the revisional order of the Deputy Commissioner. In this appeal, he not only questioned the 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 taxable. 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 [1957] 8 S.T.C. 660) and Oversea Mica Exports v. Secretary, Sales Tax Appellate Tribunal [1970] 25 S.T.C. 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 Chigurupati Veeranna v. Special Commercial Tax Officer [1971] 28 S.T.C 388, 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 Section 20 of the Act, 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 reopened by the Tribunal in an appeal against the order of the Deputy Commissioner under Section 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 Assistant Commissioner. In T.R.C. No. 24 of 1974, the facts are almost identical though the assessee is different. In T.R.C. No. 25 of 1974, the respondent was assessed on purchase of paddy on a turnover of Rs. 1,62,727.05 at 4 per cent. In the appeal before the Assistant Commissioner he did not dispute the rate of tax. The Assistant Commissioner partly allowed the appeal on a turnover of Rs. 9,000. In the appeal against the order of the Assistant 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 Section 21 (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 Assistant 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. Nos. 23 and 24 of 1974 were advanced.
2. All these revision cases were heard in the first instance by Kondaiah and Gangadhara Rao, JJ. The learned Government Pleader relied upon two Bench decisions of this Court in T.R.C. No. 53 of 1967 dated 19th November, 1970 and Kaliki Veera Reddy and Co. v. State of A.P. [1974] 34 S.T.C. 517 as well as other decisions of the Madras High Court in support of his contention that the Tribunal had no jurisdiction under Section 21 of the Act to consider that 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 appeal directly against that part of the assessment which was not the subject-matter of an appeal before the Assistant Commissioner. It was contended that the decisions of this court in Thippanna Rayappa v. Government of Andhra [1957] 8 S.T.C. 660 and Oversea Mica Exports v. Secretary, Sales Tax Appellate Tribunal [1970] 25 S.T.C. 425, 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. Government of Andhra [1957] 8 S.T.C. 660 and the decisions in T.R.C. No. 53 of 1967 dated 19th November, 1970 and Kaliki Veera Reddy and Co. v. State of A.P. [1974] 34 S.T.C, 517, 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 Section 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) the Tribunal 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 Assistant Commissioner.
4. Section 14 deals with the assessment of tax by the assessing authority. If the assessing authority is satisfied that any return submitted by the dealer under Section 13 is correct and complete, he shall assess the amount of tax payable by the dealer on the basis thereof. If the return appears to him to be incorrect or incomplete, he shall assess to the best of his Judgment the amount of tax due from the dealer. When he makes an assessment to the best of his Judgment he may also direct the dealer to pay a penalty on the turnover that was not disclosed by the dealer in his return. Section 19 provides for an appeal by the dealer and the relevant part of the section is as follows :
Any dealer objecting to an order passed or proceeding recorded by any authority under the provisions of this Act...may...appeal to such authority as may be prescribed.
5. Section 19(2) says that the appeal shall be in such form and verified, in such manner, as may be prescribed and shall be accompanied by a fee calculated at the rate of one per cent of the tax under dispute, subject to a maximum of rupees fifty.
6. Section 19(3) says :
The appellate authority may....
(a) confirm, reduce, enhance or annul the assessment or the penalty, or both ; or
(b) set aside the assessment or penalty, 6r both and direct the assessing authority to pass a fresh order after such further inquiry as may be directed; or
(c) pass such other orders as it may think fit.
(4) Before passing orders under Sub-section (3), the appellate authority may make such inquiry as it deems fit or remand the case to any subordinate officer or authority for an inquiry and report on any specified point or points.
(5) Every order passed in appeal under this Section shall, subject to the provisions of Sections 20, 21, 22 and 23, be final.
7. Section 20 provides for revision suo motu by the Board of Revenue and Section 20(2) says that such powers may be exercised by the Deputy Commissioner and the Commercial Tax Officer in the case of orders passed or proceedings recorded by authorities, officers or persons subordinate to them. section 20(2-a) provides that the power under Sub-section (1) or Sub-section (2) shall not be exercised in respect of any issue or question, which is the subject-matter of an appeal before, or which was decided on appeal by, the Appellate Tribunal under Section 21.
8. Section 20(4) states that no order shall be passed under Sub-section (1) or Sub-section (2) enhancing any assessment unless an opportunity has been given to the assessee to show cause against the proposed enhancement.
9. Section 21 provides for an appeal to the Appellate Tribunal and the relevant portions are as follows :
21. (1) Any dealer objecting to an order passed or proceeding recorded,-
(a) by any prescribed authority on appeal under Section 19, or
(b) by a Deputy Commissioner suo motu under Sub-section (4-C) of Section 14 or under Sub-section (2) of Section 20 may appeal to the Appellate Tribunal....
(3) The appeal shall be in the prescribed form, shall be verified in the prescribed manner and shall be accompanied by such fee not exceeding one hundred rupees, as may be prescribed.
(4) The Appellate Tribunal may, after giving both parties to the appeal, a reasonable opportunity of being heard-
(i) confirm, reduce, enhance or annul the assessment or the penalty or both ; or
(ii) set aside the assessment or the penalty, or both and direct the assessing authority to pass a fresh order after such further inquiry as may be directed; or
(iii) pass such other orders as it may think fit:
Provided....
(5) Before passing any order under Sub-section (4), the Appellate Tribunal may make such inquiry as it deems fit or remand the case to the appellate authority against whose order the appeal was preferred or to the assessing authority concerned, for any inquiry and report on any specified point or points....
(9) Every order passed by the Appellate Tribunal under Sub-section (4) shall, subject to the provisions of Section 22, be final.
10. Section 22 deals with revision to the High Court.
11. The relevant rules dealing with appeals are Rules 33 to 44 of the Andhra Pradesh General Sales Tax Rules. Rule 33 provides that subject to the provisions of section 19 any person aggrieved by an order passed or proceeding recorded under the provisions of the Act may appeal to the authorities referred to in that rule. Rule 33(1)(a)(iii) and (iv) deal with appeals to the Assistant Commissioner from the orders of the Commercial Tax Officer. Rule 33(2) provides that the appeals shall be in form I and verified in the manner specified in the rules. Rule 33(4) provides that the appellate authority shall pass orders as laid down in Sub-section (3) of Section 19.
12. Form I contains seven columns. Out of these, the following columns are relevant for the purpose of these revisions.
"Col. 6 : Relief claimed in appeal-
(a) Turnover determined by the assessing authority.
(b) If turnover is disputed-
(i) disputed turnover.
(ii) tax on disputed turnover.
(c) If rate of tax is disputed-
(i) turnover involved.
(ii) amount of tax disputed.
(d) Any other relief claimed.
13. The appeal memorandum has to be accompanied by a treasury receipt in support of having paid the fee calculated at the rate of one per cent of the disputed tax, subject to a maximum of fifty rupees.
14. Rule 38 deals with appeals under Section 21 to the Appellate Tribunal. Under this rule the appeal shall be in form II. Form II contains 9 columns. The relevant column is column 8.
Relief claimed in appeal-
(a) Turnover determined by the assessing authority passing the assessment order disputed.
(b) Turnover confirmed by the Commercial Tax Officer, Assistant Commissioner of Commercial Taxes or Deputy Commissioner of Commercial Taxes, as the case may be.
(c) If turnover is disputed-
(i) Disputed turnover.
(ii) Tax due on the disputed turnover.
(d) If rate of tax is disputed-
(i) Turnover involved.
(ii) Amount of the tax.
(e) Specify, if any other relief claimed.
15. The appeal has to be accompanied by a treasury receipt in support of having paid a fee calculated at the rate of one per cent of the disputed tax subject to a minimum of Rs. 25 and a maximum of Rs. 100 in cases where the levy of tax is disputed and a fee of Rs. 25 in all other cases.
16. The contention of the learned Government Pleader is that on a proper interpretation of all these relevant provisions relating to appeals, it has to be held that if an assessee has not disputed the correctness of any part of the order of assessment before the Assistant Commissioner in appeal the order of the assessing authority to that extent becomes final and he is precluded from agitating the correctness of that part of the order in the appeal before the Tribunal. On the other hand, the contention of the assessee is that the Tribunal is seized with the entire assessment, even though the appeal may relate only to a part of the assessment. Its powers under Section 21(4) are very wide and it is open to the Tribunal to allow the assessee to question the correctness of the order of assessment even in regard to the matters which were not questioned by him in appeal before the Assistant Commissioner.
17. It is well-settled that there is no inherent right of appeal. A right of appeal exists only if it is conferred by a statute and the scope and extent of the powers of the appellate authority are defined and limited by the provisions of the statute relating to the appeals. In this connection, reference may also be made to Section 3 of the Act, which says that the Tribunal constituted under the Act has to exercise the functions conferred on the Appellate Tribunal by or under the Act. Hence, the question for consideration depends solely upon the interpretation of Section 21 of the Act, which deals with appeals before the Tribunal and other relevant provisions. Section 21 confers a right to appeal on any dealer objecting to an order passed or proceeding recorded by any prescribed authority on appeal under Section 19, or by a Deputy Commissioner under Section 20. There is no general power granted to the Tribunal to interfere in appeal against the orders of the tribunals below unless there is an appeal preferred by the dealer objecting to an order passed or proceeding recorded. From this it is clear that the subject-matter of appeal before the Tribunal is only that part of the order of the authority below, which is objected to by the dealer. If the dealer had not objected to any part of the order of assessment even in his appeal before the Assistant Commissioner, it is impossible to say that he has any objection to that part of the order in the subsequent appeal before the Tribunal. Under Section 21(3) the appeal before the Tribunal has to be in the prescribed form and has to be accompanied by the prescribed fee. "Prescribed" is defined by Section 2(1)(1) of the Act as meaning "prescribed by the Rules made under the Act". Under Rule 38 of the Sales Tax Rules, 1957, an appeal under Section 21 has to be in form II. It is also provided that the fee for the memorandum of appeal is 1 per cent of the disputed tax subject to a minimum of Rs. 25 and a maximum of Rs. 100. The circumstance that under this rule the fee is proportionate to the tax disputed is a clear indication that the subject-matter of the appeal is only the disputed tax and nothing else. In form II, in column 8, particulars of the turnover determined by the assessing authority and the turnover confirmed by the first appellate authority are to be noted and then, under column 8(c), the disputed turnover and the tax due on the disputed turnover have to be mentioned. Under column (d), if the rate of tax is disputed, the turnover involved and the amount of tax are to be mentioned. The note appended to the form also says that the fee calculated at the rate of 1 per cent of the disputed tax should be paid. All these provisions clearly indicate that the subject-matter of the appeal is the disputed turnover, tax or the rate of tax and nothing else. The learned counsel for the assessee placed strong reliance on Section 21(4) of the Act, which says that the Appellate Tribunal may confirm, reduce, enhance or annul or set aside the assessment or pass such other orders as it may think fit. It is argued that as power is given to the Appellate Tribunal to confirm, reduce, enhance or annul the assessment, this provision enables the Tribunal to deal with the assessment as a whole and does not limit its powers only to the subject-matter of the appeal and that Section 21 (4)(iii), which enables the Tribunal to pass such other orders as it may think fit, further emphasises the position that the Tribunal has unlimited powers, irrespective of the subject-matter of the appeal. We are not inclined to agree with this construction placed by the assessee on Section 21(4). Section 21(4) has to be read along with Section 21(1). All that Section 21(4) means is that if the appeal relates to the whole of the assessment, then the Tribunal has powers to confirm, reduce, enhance or annul the assessment. If it relates to a part of the assessment, then its power to confirm, reduce, enhance or annul the assessment is confined to that part. The wide language used is only intended to cover all cases of appeal including cases of appeal against the entire assessment. We do not see anything in the Section which justifies the contention that even if any part of the assessment is not the subject-matter of the appeal, the Tribunal may pass orders with respect to that part also. In this connection, reference may also be made to Section 19, which deals with the right of first appeal against an order of assessment. Here again, under Section 19(1) the right is conferred on any dealer objecting to an order passed or proceeding recorded by any authority. The appeal has to be in such form as may be prescribed and shall be accompanied by a fee calculated at the rate of 1 per cent of the tax disputed. Column 6 of form I, which relates to appeals to the Assistant Commissioner, directs the assessee to state the relief claimed in appeal; if the turnover is disputed, the disputed turnover and the tax on disputed turnover. Thus, it is clear from Section 19 of the Act, the relevant rule, Rule 33 and form I, that the subject-matter of the appeal is only the turnover, disputed tax or rate of tax. There is no general right conferred upon the Assistant Appellate Commissioner to interfere with any order of assessment. Under Section 19(3), the appellate authority has, no doubt, the power to confirm, reduce, enhance, annul or set aside the assessment and pass such other orders as it may think fit. But on the same reasoning as in the case of Section 21, it is clear that this power can be exercised only with respect to the subject-matter of the appeal. Section 19(3) has to be read along with Section 19(1) in the same way as Section 21(4) has to be read along with Section 21(1). Under Section 19(5) it is provided that every order passed in appeal shall, subject to the provisions of Sections 20, 21, 22 and 23, be final. It follows therefore that if a dealer has not preferred an appeal against a particular part of the order of assessment and the Appellate Assistant Commissioner disposes of the appeal before him, the order passed on appeal is final subject only to the powers of the Tribunal under Section 21. There is nothing in Section 19 or Section 21 which enables the dealer to reagitate before the Appellate Tribunal matters which have become final before, by reason of his not having appealed against the order of the assessment. If the argument of the assessee is carried to its logical conclusion, even if no appeal is preferred to the Appellate Assistant Commissioner, the dealer would be entitled to prefer an appeal direct to the Appellate Tribunal and thus by-pass the provisions of appeal to the Assistant Commissioner under Section 19.
18. The position is the same when an assessee does not prefer an appeal against the order of assessment to the Appellate Assistant Commissioner, but the Deputy Commissioner chooses to exercise his powers of revision under Section 20 and the assessee prefers an appeal against the order of the Deputy Commissioner, enhancing the assessment in revision. Even in such a case, the assessee, not having preferred an appeal againt the order of assessment is, in our view, precluded from agitating fresh matters in an appeal before the Tribunal against the order of the Deputy Commissioner. It was submitted that as the Deputy Commissioner is entitled to enhance the assessment in a revision suo motu by him, the assessee is at a great disadvantage if he is precluded from appealing against the original assessment order in so far as it is against him, when the Deputy Commissioner has enhanced the assessment in revision. We are unable to see any force in this submission. There is nothing preventing the assessee even in a revision by the Deputy Commissioner suo motu from satisfying him that the order of assessment in so far as it is against the assessee is wrong either wholly or in part and the Deputy Commissioner revising the assessment in favour of the assessee if he is so satisfied.
19. The learned counsel for the petitioners submitted that in the history of revisions suo motu by the Deputy Commissioners there would not be even a single instance where they reduce the assessment. If that were so, we express our regret that the Deputy Commissioners are using their powers of revision only for enhancing the assessment. As the Deputy Commissioners are exercising their revisional powers in a judicial capacity it is not only open to them, but it is their duty to reduce the assessment if they are satisfied that the order of assessment is to any extent illegally passed against the assessee. But the mere fact that the Deputy Commissioners do not generally reduce but only enhance the assessment in exercise of their revisional powers is no ground for holding that in an appeal against their orders before the Tribunal the assessee can be permitted to agitate matters which were not raised before the Deputy Commissioners.
20. We are therefore in agreement with the view expressed by a Division Bench of this Court in T.R.C. No. 53 of 1967 dated 19th November, 1970, where, after referring to the relevant provisions, it was observed that until and unless an appeal is preferred by a dealer against an order of assessment to the Assistant Commissioner under Section 19, such dealer cannot be said to be a dealer aggrieved or objecting to that part so as to enable him to prefer an appeal under Section 21. The appeal by a dealer directly to the Tribunal in respect of an assessment without preferring an appeal under Section 19 of the Act is not maintainable. The same view was taken in Kaliki Veera Reddy and Co. v. State of A.P. [1974] 34 S.T.C. 517. The assessee relies strongly upon the decision in Thippanna Rayappa v. Government of Andhra [1957] 8 S.T.C. 660, where a different view was expressed. Dealing with Section 12-A(4) of the Madras General Sales Tax Act, 1939, which is similar to Section 21(4) of the A.P. General Sales Tax Act, it was held that it should be construed as enabling the Appellate Tribunal to rehear the case and the exercise of that power should not be circumscribed by consideration of whether the entire turnover has, at all stages, been disputed. The question that was referred to the High Court in revision was whether the assessee in his appeal to the Appellate Tribunal against the order passed by the Commercial Tax Officer be permitted to object to his liability in respect of the amount of turnover that was not disputed before the Commercial Tax Officer. In answering the question in the affirmative, the learned Judges laid stress on the fact that the court below is entitled and ought to rehear the case and hence it has wide powers of granting the reliefs. It was also stated that section 12-a(4), which enables the Appellate Tribunal to pass such order thereon as it thinks fit, conferred wide powers on the Appellate Tribunal and the exercise of such powers should not be circumscribed by consideration of whether the entire turnover has at all stages been disputed. With great respect to the learned Judges, we do not agree that either the principle that a court of appeal is a court of rehearing, or the provision enabling the Tribunal to pass such orders thereon as it thinks fit, would enable the Tribunal to pass orders on appeal regarding that part of the turnover which was not even objected to before the Assistant Commissioner. The court of appeal is no doubt entitled to rehear the case, but its power to rehear is confined only to the subject-matter of the appeal, unless express powers are conferred on the Tribunal to deal with the matters which are not the subject-matter of the appeal. Similarly, the power to pass orders as it thinks fit, though wide in its terms, should be confined only to passing orders with reference to the subject-matter of the appeal. The learned Judges also referred to the provisions of Order 41, Rule 33, Civil Procedure Code, as an instance of the wide power conferred on the court of appeal under the Civil Procedure Code by enabling the Appellate Tribunal to pass any decree notwithstanding the fact that the appeal was only to a part of the decree. The argument based upon Order 41, Rule 33, Civil Procedure Code, does not in any way help the assessee. On the other hand, the introduction of a specific provision like Order 41, Rule 33, Civil Procedure Code, would indicate that but for that provision there would be no power in the appellate court to pass a decree in regard to matters which were not the subject-matter of the appeal. Moreover, it is to be remembered that we are concerned with a second appeal before the Appellate Tribunal and not a first appeal before the Appellate Assistant Commissioner. Dealing with the powers under Order 41, Rule 33, Civil Procedure Code, the Supreme Court observed in Nirmala Bala v. Balai Chand A.I.R. 1965 S.C. 1874, that though the rule is undoubtedly expressed in terms which are wide, it is to be applied with discretion. The rule does not confer an unrestricted right to reopen the decrees which have become final, merely because the appellate court does not agree with the opinion of the court appealed from. In Raghunath v. Kedarnath A.I.R. 1969 S.C. 1316 also, it was pointed out that where the plaintiff did not file an appeal against the decree of the trial court, the High Court was not justified in giving a further relief to the plaintiff than that was granted by the trial court in second appeal. In Krishna Reddy v. Ramireddi A.I.R. 1954 Mad. 848, it was held that though Order 41, Rule 33, confers wide and unlimited jurisdiction on courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well-defined principles in accordance with which that jurisdiction should be exercised. Normally, a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under Order 41, Rule 33, Civil Procedure Code. In Md. Khaleef v. Les Tanneries A.I.R. 1926 P.C. 34, where the plaintiffs had not appealed against the decree of the trial judge dismissing the suit excepting as to costs, the Privy Council held that they should not be permitted to appeal to the Privy Council against the main decree, as that would in effect be an appeal direct to His Majesty in Council from the decree of the trial judge and Order 41, Rule 33, Civil Procedure Code, was not intended to apply to such a case.
21. For the above reasons we are unable to agree with the reasoning and conclusion in Thippanna Rayappa v. Government of Andhra [1957] 8 S.T.C. 660. We note that our view is shared by the Madras High Court. In Central Camera Co. (P.) Ltd. v. Government of Madras [1971] 27 S.T.C. 112, the assessee gave up his claim for concessional rate of tax on a portion of turnover before the Appellate Assistant Commissioner and restricted his claim in respect of particular turnover. The Appellate Commissioner having dismissed the appeal, on second appeal, taking advantage of the supervening decisions rendered by the High Court and the Supreme Court the assessee attempted to resurrect the entire claim. It was held that the Tribunal could not consider the claim given up by the assessee before the Assistant Appellate Commissioner. Dealing with the argument based upon the powers granted to pass orders as it thinks fit under Section 36(3)(a)(iii) of the Madras General Sales Tax Act, 1959, it was observed that this expression should be so construed as to enable the Tribunal to pass such further orders as would be necessary and which touch upon the matters in issue in the appeal before him. The same view has been expressed in the subsequent decisions by the Madras High Court (vide Easun Engineering Co. Ltd. v. Government of Madras [1974] 33 S.T.C. 350 and State of Madras v. Spencer and Co. Ltd. [1974] 34 S.T.C. 249.
22. In passing, it may also be noticed that under Section 12-A(4) of the Madras General Sales Tax Act, 1939, which was considered by this court in Thippanna Rayappa v. Government of Andhra [1957] 8 S.T.C. 660, the Appellate Tribunal is empowered to pass "such order thereon as it thinks fit" (underlining is ours). Dealing with a similar provision in the Income-tax Act, 1922 [Section 33(4)], the Supreme Court observed in Hukumchand Mills Ltd. v. Commissioner of Income-tax, Central, Bombay [1967] 63 I.T.R. 232 at 237 (S.C.):
The word 'thereon', of course, restricts the jurisdiction of the Tribunal to the subject-matter of the appeal.
23. Apparently the significance of the expression "thereon" seems to have escaped the attention of the learned Judges in Thippanna Rayappa v. Government of Andhra ([1957] 8 S.T,C. 660. In view of the observations of the Supreme Court in Hukumchand Mills Ltd. v. Commissioner of Income-tax [1967] 63 I.T.R. 232 (S.C.), it would follow that Thippanna Rayappa v. Government of Andhra [1957] 8 S.T,C. 660 was not correctly decided. It is true that in the Andhra Pradesh General Sales Tax Act, in Section 21(4) or Section 19(3) the expression "thereon" does not occur and the appellate authority is empowered to pass such other orders as it thinks fit. But, in our view, the absence of the expression "thereon" does not make much of a difference, as the powers either under Section 21(4) or Section 19(3) have to be construed only with reference to the subject-matter of the appeal. In Commissioner of Income-tax, Gujarat v. Karamchand Premchand Pvt. Ltd. [1969] 74 I.T.R. 254, the Gujarat High Court held that where in an appeal to the Appellate Assistant Commissioner by the assessee under the Income-tax Act, the assessee has not questioned the decision of the officer on a point decided and the Appellate Assistant Commissioner has not in his order considered that point, the assessee is not entitled to question the decision of the officer on the point in an appeal to the Appellate Tribunal against the order of the Appellate Assistant Commissioner and the Tribunal is not entitled to allow the assessee to agitate the question under the guise of granting leave under Rule 11 of the Income-tax (Appellate Tribunal) Rules, 1963. An argument was advanced that as soon as the order disposing of the appeal is passed by the Assistant Commissioner, the order of assessment made by the Income-tax Officer became merged in the order of the Assistant Commissioner, which became the final order of assessment. The learned Judges observed that even if this was so, this had no bearing on the question as to whether there was any decision of the Appellate Commissioner on the matter which was not the subject of appeal before him. They observed :
It is difficult to imagine how an assessee can be heard to say that, though he did not claim any particular relief in the appeal preferred before the Appellate Assistant Commissioner and the Appellate Assistant Commissioner had therefore no occasion to decide whether such relief should be granted or not, he is still aggrieved by the decision of the Appellate Assistant Commissioner in not granting such relief to him. How can an assessee complain that an order does not grant him a particular relief, when such relief is not claimed by him in the appeal? How can it be said by an assessee that the Appellate Assistant Commissioner erred....
24. These observations apply equally to the provisions relating to appeals under the Sales Tax Act also. Reference was made to certain decisions in which it has been held either under the Income-tax Act or under the Sales Tax Act that additional grounds may be raised before the Appellate Tribunal, or that questions of law may be argued for the first time before the Tribunal, even though they were not raised in the grounds of appeal. These decisions, in our view, have no relevance to the question for consideration. There cannot be any dispute that the Tribunal is entitled to permit the appellant to raise additional grounds on appeal. It may also in appropriate cases permit to raise grounds of appeal not only with respect to the subject-matter of appeal, but which would alter the subject-matter of appeal. In that case, possibly the appellant would be required to pay additional court-fee on the memorandum of grounds of appeal and to satisfy the Tribunal that there was sufficient cause for not preferring an appeal with reference to that claim in the first instance. But such power can be exercised only when the matter sought to be agitated was the subject-matter of appeal before the Appellate Assistant Commissioner. The decisions do not help the assessee in his submission that the Tribunal can permit additional grounds to be raised so as to introduce matters which were not the subject-matter of the appeal before the Assistant Commissioner.
25. Sri Anantha Babu submitted that in interpreting the provisions of the Sales Tax Act it has to be borne in mind that there is no lis between the parties, the matter for consideration being whether an assessee is liable to tax and, if so, what is the extent of that liability. This matter, according to him, has to be decided on the merits by the taxing authorities and the tribunals constituted under the enactment irrespective of the question whether the facts and circumstances are brought before them at the instance of the assessee or not and if, according to law, the assessee is not liable to pay tax to any extent, it is the duty of the tribunal concerned to give him that relief even though he has not raised any objection. We are not inclined to take the view that the principle applicable in regard to the duty of the Appellate Tribunals is different in the case of taxing enactments and other enactments. As we have pointed out even at the outset, the question ultimately depends only upon the construction of the relevant provisions relating to appeals.
26. It was then submitted that wherever there is any ambiguity and two interpretations are possible, that interpretation which is favourable to the assessee should be accepted by the courts. While we agree with this submission we do not consider that there is any ambiguity in the relevant provisions which we have considered above. For the reasons which we have stated, we are clearly of the view that the Tribunal has no power to grant relief in favour of the assessee in regard to a matter which was not objected to in the appeal before the Appellate Assistant Commissioner and which has, therefore, become final.
27. The learned counsel for the assessees also submitted that as far as this court is concerned, the decision in Thippanna Rayappa v. Government of Andhra [1957] 8 S.T.C. 660 has held the field for nearly twenty years and it was being followed by the Appellate Tribunals in the State. In a large number of cases the Appellate Tribunal was passing orders in appeal even in regard to matters in which the assessee had not preferred an appeal before the Assistant Commissioner. In view of the well-known doctrine of stare decisis he submitted that this court should allow that view to stand, as taking a different view will cause considerable hardship and upset a large number of decisions rendered by the Tribunal. He referred to Income-tax Commissioner, West Bengal v. B. Malhotra [1971] 81 I.T.R. 759 (S.C.), where it was observed that the interpretation of a provision in a taxing statute rendered years back and accepted and acted upon by the department should not be easily departed from even though a different view of the law may be reasonably possible. The courts while reconsidering the decisions rendered long time back particularly under the taxing statutes cannot ignore the harm that is likely to happen by unsettling law that had been once settled. But at the same time it is also a well-accepted principle that where the terms of a statute are clear, even a long and uniform course of judicial interpretation of it may be overruled if it is contrary to the clear meaning of the enactment. This is not a case where there has not been any difference of opinion. We have already noticed that the. Madras High Court has been consistently taking the contrary view and we have referred to the decisions of that court in Easun Engineering Co. Ltd. v. Government of Madras [1974] 33 S.T.C. 350, State of Madras v. Spencer & Co. Ltd. [1974] 34 S.T.C. 249 and Central Camera Co. (P.) Ltd. v. Government of Madras [1971] 27 S.T.C. 112. As a matter of fact, even as early as 1955 the Madras High Court has taken the same view in Kalam Somasundaram Chettiar v. State of Madras [1955] 6 S.T.C. 304. Further, a contrary view has also been taken by this court even as early as 1970 in T.R.C. No. 53 of 1967 and the same view was reiterated by another Division Bench in Kaliki Veera Reddy and Co. v. State of A.P. [1974] 34 S.T.C. 517 We therefore do not consider that a case has been made out for invoking the doctrine of stare decisis.
28. Lastly, it was argued that the decision in Thippanna Rayappa v. Government of Andhra [1957] 8 S.T.C. 660 was rendered on 20th February, 1957, construing the corresponding provisions of the Madras General Sales Tax Act, 1939. The Andhra Pradesh General Sales Tax Act was passed soon thereafter. The Bill along with the Statement of Objects and Reasons was published in the Gazette on 13th April, 1957. The Act received the assent of the President on 31st May, 1957 and came into force on 15th June, 1957. Notwithstanding the decision of the Division Bench of this Court in Thippanna Rayappa v. government of andhra [1957] 8 s.t.c. 660, the andhra pradesh act was passed practically in the same terms as the Madras Act. It was therefore argued that the legislature must be deemed to have accepted the interpretation put upon the corresponding provision in the previous Act and, therefore, the same interpretation should be placed upon the provisions by this court. In Bengal Immunity Co. v. State of Bihar A.I.R. 1955 S.C. 661, the Supreme Court observed :
It is a well-settled rule of construction that when a statute is repealed and re-enacted and words in the repealed statute are reproduced in the new statute, they should be interpreted in the sense which had been judicially put on them under the repealed Act, because the legislature is presumed to be acquainted with the construction which the courts have put upon the words and when they repeat the same words, they must be taken to have accepted the interpretation put on them by the court as correctly reflecting the legislative mind.
29. In S.D.S. Srivastava v. Union of India A.I.R. 1974 S.C. 338, it was observed that if Parliament, which is deemed to be aware of the declaration of law by the Supreme Court, did not alter the law, it must be deemed to have accepted the interpretation of the Supreme Court even though the correctness of it may be open to doubt. Similarly, in Indian Oxygen Ltd. v. Workmen A.I.R. 1972 S.C. 471, where even after the decision of the Supreme Court in Metal Box Company Of India Ltd. v. Workmen A.I.R. 1969 S.C. 612, holding that bonus amount should be calculated after a provision for tax was made and not before, in a subsequent amendment to the Bonus Act, the Parliament did not make any change in the Act enacting that a different method has to be adopted, it was observed that if the Parliament intended to make a departure from the principle laid down by the court in Metal Box Company case A.I.R. 1969 S.C. 612, a provision to that effect would have been incorporated by the Amendment Act. That not having been made, the law as laid down by the Supreme Court in Metal Box Company case A.I.R. 1969 S.C. 612 and reaffirmed by the two later decisions would still hold the field. There are observations to a similar effect in Banarsi Debi v. Income-tax Officer, District IV, Calcutta [1964] 53 I.T.R. 100 at 106 (S.C.), where the Supreme Court cited the following passage from Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd. [1933] A.C. 402 at 411:
It has long been a well-established principle to be applied in the consideration of Act of Parliament that where a word of doubtful meaning has received a clear judicial interpretation the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously assigned to it.
30. See also Vajravelu v. Special Deputy Collector for Land Acquisition, West Madras A.I.R. 1965 S.C. 1017. Here again we have no quarrel with the above principle of interpretation. But in our view this principle has no application to the facts of the case for the following reasons :
31. The decision in Thippanna Rayappa v. Government of Andhra [1957] 8 S.T.C. 660 was rendered with reference to Section 12-A(4)of the Madras General Sales Tax Act, 1939. All that is said there is that the appellate authority shall pass such order thereon as it thinks fit. In the Andhra Pradesh Act, under Section 21(4), the Appellate Tribunal may confirm, reduce, enhance or annul the assessment, set aside the assessment and direct the assessing authority to pass a fresh order after such further inquiry as may be directed or pass such other orders as it may think fit. Thus there is considerable difference in the language of the two sections. Further all the cases referred to are cases where a particular word or expression is construed in which case it has been held that when the same expression or word is used in a subsequent enactment, the Parliament must be deemed to have accepted the interpretation of that word or expression by the court. This is not a case where any particular word or expression is sought to be interpreted, the question being what is the scope and extent of the appellate powers of the tribunal. We do not think that the above principle applies to such a case as this.
32. For all the reasons stated above, we are inclined to prefer the view expressed in T.R.C. No. 53 of 1967 dated 19th November, 1970 and Kaliki Veera Reddy and Co. v. State of A.P. [1974] 34 S.T.C. 517, to the view expressed in Thippanna Rayappa v. Government of Andhra [1957] 8 S.T.C. 660.
33. It is admitted by the learned counsel for the assessees that if we are of the above view, the T.R. Cs. have to be allowed. They are accordingly allowed, but in the circumstances without costs.
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