DEPUTY COMMISSIONER OF SALESTAX Vs. KITTOOTTY

JUDGEMENT

(1.) In these revision petitions filed by the State through the Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam, the question of law raised is whether the assessing authority can exercise the power of rectification under S.43 of the Kerala General Sales Tax Act, in respect of a matter covered by an order of assessment which had been taken up in appeal before the concerned Appellate Assistant Commissioner and the appellate authority had confirmed the order of assessment passed by the assessing authority. The Sales Tax Appellate Tribunal has taken the view that in such cases the order of the assessing authority must be held to have merged in that of the Appellate Authority and hence it is only the appellate authority that is competent to exercise the power of rectification conferred by S.43 of the Act. The correctness of this view is called in question by the learned Government Pleader appearing on behalf of the revision petitioners.

(2.) Strong reliance is placed by him on certain observations of a Division Bench of the Gujarat High Court in Karsandas Bhagwandas Patel v. G. V. Shah, Income Tax Officer, Rajkot (98 ITR 255). In our opinion that case is clearly distinguishable on facts.

(3.) The question as to the applicability of the doctrine of merger in such cases is directly covered by the pronouncement of a Full Bench of this Court in Kannan v. Narayani ( 1980 KLT 9 ) wherein, dealing with the question as to whether the Trial Court which passed the original decree in a suit could correct or amend the decree under S.152 CPC in a case where such decree had been the subject matter of an appeal of a higher court and the appellate court had merely confirmed the judgment/decree of the lower court, the Full Bench held that the decree of the original court merges in the decree in appeal and it is only the appellate court that could correct or amend the decree under S.152 of the Code, except in cases to which S.153A of the CPC applies, namely, where the appeal had been disposed of by the appellate court in limine. In coming to that decision the Full Bench has relied on the decision of the Privy Council in Brij Narain v. Tejbal Bikram Bahadur (ILR 32 All. 295), the dictum in which has been subsequently approved and followed by the Supreme Court in Gojer Brothers v. Ratan Lal ( AIR 1974 SC 1380 ). In the light of the aforesaid pronouncement by the Full Bench, we have no hesitation in upholding the correctness of the view taken by the Sales Tax Appellate Tribunal in these two cases. The Tax Revision Cases are accordingly dismissed. There will be no direction as to costs.