TaxTMI 
TaxTMI 
1995 (2) TMI 388
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....A) of the Central Sales Tax Act read with section 36(3) of the Bombay Sales Tax Act was valid? (ii) Whether the limitations provided under section 33(4A) of the Bombay Sales Tax Act are applicable to the levy of such penalty?" 2.. The assessee, who is a registered dealer under the Central Sales Tax Act, 1956 ("the Central Act"), was assessed by the Sales Tax Officer, Thane, under section 9(2) of the Central Act read with section 33(3) of the Bombay Sales Tax Act, 1959 ("the Bombay Act" or "the Act') for the period January 1, 1969 to December 31, 1969, vide his assessment order dated July 30, 1977. In the above order of assessment, it was observed: "Action to levy penalty under section 36(3) (of the Bombay Sales Tax Act, 1959), read....
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....afresh and to reimpose penalty, after the order imposing the penalty had been set aside by the Tribunal; second, the quantum of penalty. The Assistant Commissioner did not accept the contention of the assessee that once the order of penalty is set aside by the appellate authority, the Sales Tax Officer cannot pass a fresh order and reimpose the same. He, however, reduced the quantum of penalty from Rs. 1,15,262 to Rs. 87,000. The assessee went in second appeal to the Tribunal. The Tribunal confirmed the order of the Assistant Commissioner in regard to the power of the Sales Tax Officer to impose the penalty but further reduced the quantum of penalty to Rs. 57,000. The assessee being not satisfied by the finding of the Tribunal in regard to ....
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....o of the decision of this Court in Balaji Cotton Company [1995] 97 STC 613. It rather supports the same. In the above case, the controversy before the Supreme Court related to the scope and ambit of the powers of the Income-tax Appellate Tribunal under section 254(1) of the Income-tax Act, 1961, in deciding the appeals before it. Section 254(1) is as under: "254(1). The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit." The Supreme Court construed the above provision, particularly the expression "pass such orders as it thinks fit", and held: "The expression 'as it thinks fit' is wide enough to include the power of remand to the authority compet....
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....t 42 of 1971: "(6) Subject to such rules of procedure as may be prescribed, every appellate authority (both in the first appeal and the second appeal) shall have the following powers: (a) in an appeal against an order of assessment, it may confirm, reduce, enhance or annul the assessment; or it may set aside the assessment and refer the case back to the assessing authority for making a fresh assessment in accordance with the direction given by it and after making such further inquiry as may be necessary; and the assessing authority shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment; (b) in an appeal against an order imposing a penalty....
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....making such further enquiry as may be necessary. There is thus a clear distinction in the power of the appellate authority in an appeal against an order of assessment and in appeal against an order of penalty. While dealing with an appeal against an order of assessment it has been specifically conferred with the power to set aside the assessment and refer the case back to the assessing authority for making a fresh assessment in the manner specified therein but no such power is there while deciding an appeal against an order of penalty. The omission of this power of setting aside and referring back for fresh order is not accidental but deliberate. The Legislature has given to the appellate authority while dealing with an appeal against an or....