TaxTMI 
TaxTMI 
TaxTMI 
2008 (12) TMI 353
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....enalty was sustainable. The appeal was partly modified and partly allowed. Before the Sales Tax Appellate Tribunal, the assessee filed a petition to raise the following additional grounds: "1. The order of the lower authority is wrong and illegal imposing sales tax on sale of herbal shikakai power as cosmetic item. 2. The Appellate Assistant Commissioner and the Appellate Authority failed to see that unless the goods are specifically enumerated in the schedule, it cannot be classified as a specified goods as only a residuary item. 3. Even in common parlance and trade circle, herbal shikakai powder is not treated as shampoo or cosmetic." The Sales Tax Appellate Tribunal held that there was no reasonable ground for admitting the additiona....
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.... to Section 36(3) of Tamil Nadu General Sales Tax Act, 1959. 3. Learned Special Government Pleader (Taxes) relied on the judgment reported in (1991) 83 STC 497 (cited supra) wherein this Court had held that a new plea cannot be allowed to be raised before the Appellate Tribunal for the first time. 4. Now, the main ground urged before us is whether the Tribunal was right in refusing to consider the additional plea which was raised for the first time before the Tribunal. We do not propose to enter into the controversy on merits, but only on the above question of law. 5. Section 36(3) of the Tamil Nadu General Sales Tax Act, 1959 reads as follows: "36(3) In disposing of an appeal, the Appellate Tribunal may, after giving the appellant a re....
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.... in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with the plenary 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 an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer." Again in (1998) 229 ITR 383 (cited supra), it was held by the Supreme Court as hereunder: "Under Section 254 of the Income-tax Act, 1961, the Appellate Tribunal may, after giving both the parties to the appeal an oppo....
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.... in the assessment proceedings, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee." The Supreme Court further held that the Tribunal has jurisdiction to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee and therefore, remitted the matter to the Tribunal for consideration of the new grounds raised by the assessee on merits. 6. In (2002) 253 ITR 426 (cited supra), the Division Bench of this Court held thus: "The first part of the second question concerns the correctness of the Tribunal's view that the additiona....