Silvar Oak, C-4, Sawai Jaisingh High-Way, Jaipur v. The Commissioner Of Income Tax-I, Ncrb, Statute Circle, Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. INCOME TAX APPEAL No.128/2006. M/s Kalindee Rail Nirman (Engineers) Limited, Silvar Oak, C-4, Sawai Jaisingh High-way, Jaipur: through its Director Shri S.P. Sharma S/o Shri G.L. Sharma aged 56 years approx. by cast Hindu. ----Appellant Versus 1. The Commissioner Of Income Tax-I, NCRB, Statute Circle, Jaipur. 2. The Dy. Commissioner of Income Tax, Spl. Range-I, NCRB, Statute Circle, Jaipur. ----Respondents D.B. INCOME TAX APPEAL No.34/2008. M/s Kalindee Rail Nirman (Engineers) Limited, Silvar Oak, C-4, Sawai Jaisingh High-way, Jaipur: through its Director Shri S.P. Sharma S/o Shri G.L. Sharma aged 56 years approx. by cast Hindu. ----Appellant Versus 1. The Commissioner Of Income Tax-I, NCRB, Statute Circle, Jaipur. 2. The Jt. Commissioner of Income Tax, Spl. Range-I, NCRB, Statute Circle, Jaipur. ----Respondents _____________________________________________________ For Appellant : Mr. Naresh Gupta For Respondent(s) : Mr. Anuroop Singhi _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERIHON'BLE MR. JUSTICE VINIT KUMAR MATHURJudgment Per Hon’ble Jhaveri, J. 24/01/2017 1.By way of this appeal, the appellant has challenged thejudgment and order of the Tribunal whereby the Tribunal hasdismissed the appeal filed by the assessee and confirmed theorder of the CIT(A). 2.This Court while admitting the appeal No.128/2006 on05.07.2007 and appeal No.34/2008 on 20.08.2008 has framed the following substantial questions of law: “1. Whether Income Tax Appellate Tribunaloverlooked and ignored the provisioncontained in Section 254(1) of the IncomeTax Act in non granting relief to theassessee and affirming the order of theCommissioner of Income Tax (Appeals)?2. Whether the Income Tax AppellateTribunal overlooked the legal andConstitutional provision that no amount oftax can be recovered without any authorityof law and, therefore, the Union could nothave been permitted to retain the havebeen permitted to retain the excess amountof tax paid by the assessee?” 3.Counsel for the appellant has relied upon the decisions of different High Courts. 3.1.In the case of S.R. Koshti Vs. Commissioner of IncomeTax- (2005) 276 ITR 165, it has been held by Gujarat High Courtas under: “A word of caution. The authorities underthe Act are under an obligation to act inaccordance with law. Tax can be collectedonly as provided under the Act. If anassessee, under a mistake, misconceptionor on not being properly instructed, isover-assessed, the authorities under theAct are required to assist him and ensurethat only legitimate taxes due arecollected. This Court, in an unreporteddecision in case of Vinay Chandulal Satia v.Shri N.O.Parekh., the Commissioner ofIncome Tax, Special Civil Application No.622/1981, rendered on 20-8-1981, haslaid down the approach that the authoritiesmust adopt in such matters in the followingterms : "The Supreme Court has observed innumerous decisions, including Ramlal andOrs. v. Rewa Coalfields Ltd., AIR 1962 SC361; The State of West Bengal v. TheAdministrator, Howrah Municipality andOrs., AIR 1972 SC 749, and BabutmalRaichand Oswal v. Laxmibai R. Tarte, AIR1975 SC 1297, that the State authoritiesshould not raise technical pleas if thecitizens have a lawful right and the lawfulright is being denied to them merely ontechnical grounds. The State authoritiescannot adopt the attitude which privatelitigants might adopt." 3.2. In the case of Commissioner of Income Tax Vs. Bakelite Hylam Ltd.- (1999) 237 ITR 0392, Andhra Pradesh High Court hasheld as under: "The Supreme Court has observed innumerous decisions, including Ramlal andOrs. v. Rewa Coalfields Ltd., AIR 1962 SC361; The State of West Bengal v. TheAdministrator, Howrah Municipality andOrs., AIR 1972 SC 749, and BabutmalRaichand Oswal v. Laxmibai R. Tarte, AIR1975 SC 1297, that the State authoritiesshould not raise technical pleas if thecitizens have a lawful right and the lawfulright is being denied to them merely ontechnical grounds. The State authoritiescannot adopt the attitude which privatelitigants might adopt." 3.2. In the case of Commissioner of Income Tax Vs. Bakelite Hylam Ltd.- (1999) 237 ITR 0392, Andhra Pradesh High Court hasheld as under: “On a reading of clause (b) of subsection(4) of Section 143 of the Act, it is clearthat on an assessment made under Section143(1)(a) of the Act, and such assessment results in refund, if such refund exceedsthe amount refundable on regularassessment made under Section 143(3) ofthe Act, the whole or the excess amount sorefunded shall be deemed to be the taxpayable by the assessee. In other words, inthe regular assessment, the tax liability isdetermined on the basis of giving credit toall the deductions the assessee is entitledto notwithstanding the fact of theassessment made under Section 143(1)(a) of the Act. On a careful examination ofthe words so used in clause (b) of sub-section (4) of Section 143 of the Act, wecannot borrow a different meaning thanthe one intended by flic Legislature to saythat the Legislature did not visualise asituation permitting the assessing authorityto grant refund also under regularassessment in favour of an assessee. Though the learned Standing Counsel forthe Income Tax Department has contendedthat in the decision cited 205 ITR 585(supra), the Bombay High Court hasexamined the scope of Section 143(3) ofthe Act in the light of the circular issued bythe CBDT and held that no refund can begranted to the assessee while completingthe assessment under Section 143(3) ofthe Act, we are not prepared to accept thesame. On a careful reading of the saiddecision, we find that the provisionsunder Section 143(3) of the Act did not fellfor consideration before the Division Benchof Bombay High Court in the said decision.Only a casual reference was made to theamendment brought to Section 143 of theIT Act from the assessment year 1989-90onwards. The Division Bench in the saiddecision has no occasion to deal with aquestion as to whether the AssessingAuthority had the power to order refundwhile making a regular assessmentunder Section 143(3) of the Act. We are,therefore, of the view that this decisioncannot render any assistance to theRevenue to say that the decision of theBombay High Court is in line with thethinking of the Revenue. Merely becausethere are certain departmental instructions as provided in circular Ref.Na549 dated 31-10-1989 issued by the CBDT; we arc of theview, such instructions cannot overweighthe statutory provisions of the Income TaxAct and as such we are not persuaded tohold that the circular instructions of CBDTshould bind the Assessing Authority evenbypassing the provisions of the IT Act. Having regard to the above discussion andin the light of sub-section (4) of Section143 of the Income Tax Act which wasinserted by way of amendment in the year,1989, we are inclined to hold that theAssessing Authority is entitled to determinethe quantum of refund also in a regularassessment made under Section 143(3) ofthe Act. 3.3.In the case of Commissioner of Income Tax Vs. ValiBrothers- (2006) 282 ITR 0149 (All), Allahabad High Court has held as under: “Section 237of the Act contemplates refundwhich reads as follows:-Section 237-Refunds:-which reads as follows:-Section 237-Refunds:- Having regard to the above discussion andin the light of sub-section (4) of Section143 of the Income Tax Act which wasinserted by way of amendment in the year,1989, we are inclined to hold that theAssessing Authority is entitled to determinethe quantum of refund also in a regularassessment made under Section 143(3) ofthe Act. 3.3.In the case of Commissioner of Income Tax Vs. ValiBrothers- (2006) 282 ITR 0149 (All), Allahabad High Court has held as under: “Section 237of the Act contemplates refundwhich reads as follows:-Section 237-Refunds:-which reads as follows:-Section 237-Refunds:- "If any person satisfies the Income TaxOfficer that the amount of tax paid by himor on his behalf or treated as paid by himor on his behalf for any assessment yearexceeds the amount with which he isproperly chargeable under this Act for thatyear be shall be entitled to a refund of theexcess." Under Section 237 of the Act, if theAssessing Officer is satisfied that theamount of tax paid by the assessee for anyassessment year exceeds the amount withwhich he is properly chargeable under thisAct for that year, the assessee be givenrefund of the excess amount. In thepresent case, admittedly, no amount hasbeen held chargeable, therefore, the entireamount deposited towards advance tax was in excess and was refundable. Theargument of learned Standing Counsel thatin the present case, proceedingsunder Section 148 of the Act was drooped,therefore, there was no assessment and assuch, the assessee was not entitled forrefund, has no merit. In the case of EsthuriAswathiah v. Income Fax Officer, MysoreState, their Lordships of the SupremeCourt held that 'no proceedings' terminatedto the assessment proceedings, and that itshould be construed as meaning that theassessee had no assesseable income. Inthe case of M.C.T. Muthuraman v. C.I.T.reported in 50 I.T.R. 656, the Madras HighCourt held as follows:- "We are of opinion that the proceedings for1953-54 and 1954-55 were lawfullyterminated by the Income Tax Officer. It istrue that Section 23 does not in expressterms provide for closing the assessmentproceedings with an order that noassessment would be levied. Though, theassessee had offered an item of income forassessment as his, the Income Tax Officercame to the conclusion that it was theHindu undivided family that was liable tobe assessed on that income and not theassessee. It was a conclusion, whether itwas right or wrong, that he had jurisdictionto reach; and, once be reached thatconclusion, he could not tax theassessee. In Esthuri Aswathiah v. IncomeTax Officer, Mysore State, their Lordships ofthe Supreme Court pointed out that theorder 'no proceedings' terminated theassessment proceedings, and that it shouldbe construed as meaning that the assesseehad no assessable income. The assessmentproceedings that commenced with thereturns filed by the assessee were lawfullyterminated when they were closed with theentry 'N.A.' Thereafter, the finality of theterminationofthoseassessmentproceedings could be vacated only byrecourse to Section 34, as this was not acase for the application of Section 35." 3.4.In the case of Seshammal (R.) Vs. Income-tax Officer-(1999)237 ITR 0185, Madras High Court has held as under: “The fact that the petitioner had paid themonies to the Government under themistaken notion that the association ofpersons would be liable for tax even whenthe assessment was not required to bemade as an association of persons; that theamount though paid was not actuallyrequired to be paid and that the State hasnot refunded those amounts by takingadvantage of the mistake committed by thepayer is not in dispute. The Act is notintended to benefit the State by enabling itto collect or retain monies not payable to itunder the Act. What is required to becollected from the assessees under the Actis only the tax and other amounts properlypayable under the Act. 3.4.In the case of Seshammal (R.) Vs. Income-tax Officer-(1999)237 ITR 0185, Madras High Court has held as under: “The fact that the petitioner had paid themonies to the Government under themistaken notion that the association ofpersons would be liable for tax even whenthe assessment was not required to bemade as an association of persons; that theamount though paid was not actuallyrequired to be paid and that the State hasnot refunded those amounts by takingadvantage of the mistake committed by thepayer is not in dispute. The Act is notintended to benefit the State by enabling itto collect or retain monies not payable to itunder the Act. What is required to becollected from the assessees under the Actis only the tax and other amounts properlypayable under the Act. The argument advanced by counsel for theRevenue that Section 237 of the Act doesnot permit such refund being made is notsupported by the terms of that section.Section 237 of the Act provides that ifmonies have been paid in excess of theamount for which the payer is "properlychargeable under the Act for thatassessment year" such person is entitled toget the refund of the excess amount. Theentire amount paid by the assessee was inexcess of the amount which was actuallychargeable. The assessee was, therefore,entitled to have refund of the excessamount. Section 237 of the Act does not specify thatan assessment order must be made andthat some amount must be found to bepayable as tax and that some amount inexcess of that amount should have beenpaid. It is not a pre-condition for invokingthat section that some liability for tax musthave been cast upon the person claimingrefund.” 3.5.In the case of Gujarat Gas Co. Ltd. Vs. JointCommissioner of Income-tax (Asssessment)- (2000) 245 ITR0084, Gujarat High Court has held as under: “In this case, according to us, the AssessingOfficer was not bound by the said circularand yet the Assessing Officer hasconsidered the circular and, therefore, hehas not exercised powers independently. Hehas not exercised his own discretion. In the instant case, therefore, in paragraph12, after rounding off the taxable incomethe following paragraph found in theassessment order, which reads as under, isquashed and set aside. “However, as per the Central Board ofDirect Taxes, New Delhi’s Circular No.549(see [1990] 182 ITR (St.)1), para. No.5.12,dated October 31, 1989, the assessedincome shall not be less than the returnedincome. In view of the above, the totalincome will be Rs.5,13,86,320.” The Assessing Officer shall make theassessment order without keeping in mindthe circular which he has referred to in theassessment order within a period onemonth from the date of receipt of the writ.” 3.6.In the case of Commissioner of Income Tax Vs. Bharat General Reinsurance Co. Ltd. (1971) 081 ITR 0303, Delhi High Court has held as under: “It is true that the assessed itself hadincluded that dividend income in its returnfor the year in question but there is noestoppel in the Income-tax Act and theassessed having itself challenged thevalidity of taxing the dividend during theyear of assessment in question, it must betaken that it had resoled from the positionwhich it had wrongly taken while filing thereturn. Quite apart from it, it is incumbent on the income-tax department to find outwhether a particular income was assessablein the particular year or not. Merelybecause the assessed wrongly included theincome in its return for a particular year, itcannot confer jurisdiction on thedepartment to tax that income in that yeareven though legally such income did notpertain to that year. We are, therefore, ofthe view that the income from dividend wasnot assessable during the assessment year1958-59 but* it was assessable in theassessment year 1953-54. It cannot,therefore, be taxed in the assessment year1958-59.” on the income-tax department to find outwhether a particular income was assessablein the particular year or not. Merelybecause the assessed wrongly included theincome in its return for a particular year, itcannot confer jurisdiction on thedepartment to tax that income in that yeareven though legally such income did notpertain to that year. We are, therefore, ofthe view that the income from dividend wasnot assessable during the assessment year1958-59 but* it was assessable in theassessment year 1953-54. It cannot,therefore, be taxed in the assessment year1958-59.” 3.7.In the case of Jute Corporation of India Ltd. Vs.Commissioner of Income Tax and another- (1991) 187 ITR 688(SC), the Supreme court has held as under: “Power to enhance Tax on discovery of newsource of income is quite different thangranting deduction on the admitted factsfully supported by the decision of thisCourt. If the tax liability of the assessee isadmitted and if the Income Tax Officer is af-forded opportunity of hearing by theAppellate Authority is allowing theassessee's claim for deduction on thesettled view of law, these appears to be nogood reason to curtail the powers of theappellate authority under Section 251(1)(a) of the Act. In Commissioner of Income Tax, U.P.v.Kanpur Coal Syndi- cate, [1964] 53 I.T.R.225 a three Judge Bench of this Courtdiscussed the scope of Section 31(3)(a) ofthe Income Tax Act, 1922 which is almostidentical to Section 251(1)(a). The Courtheld as under: "If an appeal, lies, Section 31 of the Actdescribes the powers of the AppellateAssistant Commissioner in such an appeal.Under Section 31(3)(a) in disposing of suchan appeal the Appellate AssistantCommissioner may, in the case of an orderof assessment, confirm, reduce, enhance orannul the assessment; under clause (b) thereof he may set aside the assessmentand direct the Income Tax Officer to make afresh assessment. The Appellate AssistantCommissioner has, therefore, plenarypowers in disposing of an appeal. The scopeof his power is conterminous with that ofthe Income Tax Officer. He can do what theIncome Tax Officer can do and also directhim to do what he has failed to do." (emphasissupplied)Theaboveobservations are squarely applicable to theinterpretation ofs. 251(1)(a) of the Act.The declaration of law is clear that thepower of the Appellate AssistantCommissioner is co-terminus with that ofthe Income Tax Officer, if that he so, thereappears to be no reason as to why theappellate authority cannot modify theassessment order on an additional groundeven if not raised before the Income TaxOfficer. No exception could be taken to thisview as the Act does not place anyrestriction or limitation on the exercise ofappellate power. Even otherwise anAppellate Authority while hearing appealagainst the order of a subordinate authorityhas all the powers which the originalauthority may have in deciding the questionbefore it subject to the restrictions orlimitations if any prescribed by thestatutory provi- sions. In the absence ofany statutory provision the Appel- lateAuthority is vested with all the plenarypowers which the subordinate authoritymay have in the matter. There appears tobe no good reason and none was placedbefore us to justify curtailment of the powerof the Appellate Assist- ant Commissioner inentertaining an additional ground raised bythe assessee in seeking modification of theorder of assessment passed by the IncomeTax Officer.” 3.8.In the case of National Thermal Power Co. Ltd. Vs. Commissioner of Income-tax- (1998) 229 ITR 0383, the SupremeCourt has held as under: “3. The assessee contended that on accountof two orders of Special Benches of the 3.8.In the case of National Thermal Power Co. Ltd. Vs. Commissioner of Income-tax- (1998) 229 ITR 0383, the SupremeCourt has held as under: “3. The assessee contended that on accountof two orders of Special Benches of the Tribunal in the cases of Arasan AluminiumIndustries (P) Ltd. and Nagarjuna SteelsLtd., the assessee learnt that the interestearned in this manner before the setting upof business is not taxable as income and itgoes to reduce the capital cost of the plant.On learning about this legal position, theassessee sought to include the above threegrounds in its grounds of appeal. TheTribunal has declined to entertain theseadditional grounds. 4. The Tribunal has framed as many as fivequestions while making a reference to us.Since the Tribunal has not examined theadditional grounds raised by the assesseeon the merits, we do not propose to answerthe questions relating to the merits of thosecontentions. We reframe the question whicharises for our consideration in order to bringout the point which requires determinationmore clearly. It is as follows: Where on the facts found by the authoritiesbelow a question of law arises (though notraised before the authorities) which bearson the tax liability of the assessee, whetherthe Tribunal has jurisdiction to examine thesame ? 5. Under Section 254 of the Income-taxAct, the Appellate Tribunal may, after givingboth the parties to the appeal anopportunity of being heard, pass suchorders thereon as it thinks fit. The power ofthe Tribunal in dealing with appeals is thusexpressed in the widest possible terms. Thepurpose of the assessment proceedingsbefore the taxing authorities is to assesscorrectly the tax liability of an assessee inaccordance with law. If, for example, as aresult of a judicial decision given while theappeal is pending before the Tribunal, it isfound that a non-taxable item is taxed or apermissible deduction is denied, we do notsee any reason why the assessee should beprevented from raising that question beforethe tribunal for the first time, so long as therelevant facts are on record in respect ofthat item. We do not see any reason torestrict the power of the Tribunalunder Section 254 only to decide the grounds which arise from the order of theCommissioner of Income-tax (Appeals).Both the assessee as well as theDepartment have a right to file anappeal/cross-objections before the Tribunal.We fail to see why the Tribunal should beprevented from considering questions of lawarising in assessment proceedings althoughnot raised earlier. 6. In the case of Jute Corporation of IndiaLtd. v. C.I.T. . this Court, while dealing withthe powers of the Appellate AssistantCommissioner observed that an appellateauthority has all the powers which theoriginal authority may have in deciding thequestion before it subject to the restrictionsor limitations, if any, prescribed by thestatutory provisions. In the absence of anystatutory provision, the appellate authorityis vested with all the plenary powers whichthe subordinate authority may have in thematter. There is no good reason to justifycurtailment of the power of the AppellateAssistant Commissioner in entertaining anadditional ground raised by the assessee inseeking modification of the order ofassessment passed by the Income-taxOfficer. This Court further observed thatthere may be several factors justifying theraising of a new plea in an appeal and eachcase has to be considered on its own facts.The Appellate Assistant Commissioner mustbe satisfied that the ground raised wasbona fide and that the same could not havebeen raised earlier for good reasons. TheAppellate Assistant Commissioner shouldexercise his discretion in permitting or notpermitting the assessee to raise anadditional ground in accordance with lawand reason. The same observations wouldapply to appeals before the Tribunal also.” 3.9.In the case of Ahmedabad Electricity Co. Ltd. Vs.Commissioner of Income-tax- (1993) 199 ITR 351 (Bom), theBombay High Court has held as under: “In the case of the Appellate AssistantCommissioner there is an express powergranted to him to enhance the tax liability.This is because the Department does nothave a right of appeal before the AppellateAssistant Commissioner. As far as theAppellate Tribunal is concerned, the casemay be, if it is aggrieved by any part of theorderoftheAppellateAssistantCommissioner. Therefore, any expresspower of enhancement has not beenconferred on the Appellate Tribunal. TheTribunal can, in a given case, in dealingwith an appeal filed by the Department orconsidering its cross-objections, enhancethe tax liability of the assessee if theTribunal accepts the contention of theDepartment. Dr. Balasubramanian, learned advocate fortheDepartmentcontendsthat,under section 254, the Tribunal can decideonly points raised or allowed to be raisedbefore it; and further that the Tribunalcannot permit raising of points not arisingfrom the order of the Appellate AssistantCommissioner. We do not find anythingin section 254 which would thus restrict thepowers of the Appellate Tribunal whileconsidering an appeal before it. As we havesaid earlier, the basic purpose of an appealprocedure in an income-tax matter is toascertain the correct tax liability of theassessee in accordance with law. Therefore,at both the stages, either before theAppellate Assistant Commissioner or beforethe Appellate Tribunal, the appellateauthority can consider the proceedingsbefore it and the material on record beforeit for the purpose of determining the correcttax liability of the assessee. The appellateauthorities of course, cannot travel beyondthe proceedings and examine new sourcesof income. For this purpose, other separateremedies are provided to the Departmentunder the income-tax Act. But, apart fromthis,thereisnothingin section254 or section 251 which would indicatethat the appellate authorities are confinedto considering only the objections raisedbefore them or allowed to be raised before 3.10. them either by the assessee or by theDepartment, as the case may be. They canconsider the entire proceeding to determinethe tax liability of the assessee. But theycannot travel beyond the proceedings tobring in new sources of income. TheExplanation to section 251(2) clearly bringsout this aspect. The Explanation clarifies theextent of the powers of an AppellateAssistant Commissioner. But, even beforethe Explanation was added to section 251,that section and the corresponding previoussection had been interpreted by our HighCourt and other High Courts in the samemanner.” In the case of Commissioner of Income-Tax (Central), Madras Vs. Indian Express (Madurai) Pvt. Ltd.-(1983) 140 ITR 705(Mad), the Madras High Court has held as under: 3.10. them either by the assessee or by theDepartment, as the case may be. They canconsider the entire proceeding to determinethe tax liability of the assessee. But theycannot travel beyond the proceedings tobring in new sources of income. TheExplanation to section 251(2) clearly bringsout this aspect. The Explanation clarifies theextent of the powers of an AppellateAssistant Commissioner. But, even beforethe Explanation was added to section 251,that section and the corresponding previoussection had been interpreted by our HighCourt and other High Courts in the samemanner.” In the case of Commissioner of Income-Tax (Central), Madras Vs. Indian Express (Madurai) Pvt. Ltd.-(1983) 140 ITR 705(Mad), the Madras High Court has held as under: “The primary purpose of the stature is tolevy and collect the income-tax. This isbased on the cardinal principle, which hasbeen incorporated as a veritableconstitutional provision, that no tax can belevied or collected save under authority oflaw. The task of an appellate authorityunder the taxing statute, especially a non-departmental authority like the Tribunal, isto address its mind to the factual and legalbasis of an assessment for the purpose ofproperly adjusting the taxpayer's liability tomake it accord with the legal provisionsgoverning his assessment. Since the be-alland end-all of the statutory provisions,especiallythoserelatingtotheadministration and management ofincome-tax, is to ascertain the tax-payers'liability correctly, to the last pie, if it werepossible, the various provisions relating toappeal, second appeal, reference and thelike can hardly be equated to a lis ordispute as arises between the two partiesin a civil litigation. Although the income-taxstatute makes the Department or itsofficers figure as parties in appealproceedings, they are not in the strictsense what are called by American writersas parties to adversary proceedings. This isso, because the very object of the appeal is not to decide a point raised as a dispute,but any point which goes into theadjustment of the taxpayer's liability. Inthat sense, a view prevails, even inEngland, that the authorities sitting inappeal in a tax case, cannot be regardedas deciding a lis, but they are onlyengaged in an administrative act ofadjusting the taxpayer's liability. Under ourfiscal jurisprudence, we may regard theappellate authorities as exercising quasi-judicial functions in the same sense as ataxing officer does. But, even so, theproceedings before them lack the basiselements of adversary proceeding. It,therefore, follows that the discussion andthe scope of the appellate jurisdiction ofthe Tribunal and other authorities underthe tax code cannot be pursued by drawinga parallel to civil litigation with particularreference to appeals from decrees, and thelike. The insistence on one party to theappeal being entitled to the fruits offinality, as it is called, and the appellateauthority being confined to the subject-matter of the appeal are all ideas whichmight have relevance if the discussioncenters on purely civil litigation and suchlike adversary proceedings as in anindustrial dispute. But in a case where theRevenue is all the while a party, in amanner of speaking, and is also at thesame time, an authority vested with theresponsibilities of drawing up theassessment and laying down the correctliability, it would not be in accord with thescheme of the Act to impose restrictions onthe ambit and the power of the Tribunal bysuch like notions as finality, subject-matterof the appeal, and the like. The statutoryprovision in s. 33(4) of the 1922 Act and s.254 of the 1961 Act which confersappellate jurisdiction on the Tribunal clearlylays down that the Tribunal, in disposing ofan appeal, may pass such orders thereonas it thinks fit. Excepting that theexpression "subject-matter" has taken thefancy of many learned and eminent judges,that is an expression which is notemployed by the provision conferring thejurisdiction in the Tribunal. “ 4.Counsel for the respondent has supported the order ofthe Tribunal and contended that the view taken by the Tribunal inview of concurrent finding is required to be affirmed. 5.We have heard Mr. Gupta learned counsel for theassessee and Mr. Singhi learned counsel for the department. 6.Taking into consideration the view taken by the GujaratHigh Court, Allahabad High Court, Madras High Court and AndhraPradesh High Court, we are of the opinion that the contentionraised by the appellant that on acceptance of the scrutiny, if he isentitled for other benefits which he has not claimed, the same berefunded to him i.e. after the proceeding if it is found thatassessee is entitled for refund, the same should be refunded asthe State cannot recover the tax more than what is due to it. 7.The issue is answered in favour of the assessee andagainst the department. 8.The appeal stands allowed. A copy of this judgment beplaced in each of the file. (VINIT KUMAR MATHUR)J. (K.S. JHAVERI)J. bblm/