ORDER
Thanikkachalam, J.
1. The assessee is the appellant. The assessment year for these appeals are 1980-81 and 1981-82. The Enforcement Wing Officers had passed revisional order based on slips recovered an the business premises in 1984. Against the said order, the appellant had preferred an appeal before the Appellate Assistant Commissioner (CT), Thanjavur. The then Appellate Assistant Commissioner (CT), Thanjavur, had sustained the tax levied by the revisional authority. Against that order, the appellant had preferred an appeal before the Sales Tax Appellate Tribunal. The Tribunal, in turn, remanded a portion regarding the tax levied, with a direction to pass a fresh order, after giving an opportunity to the appellant to give explanation. As per the order of the Tribunal, the revisional authority had passed fresh order. Aggrieved by this order, the appellant filed appeal disputing the liability on the entire revised turnover and levy of penalty. The Appellate Assistant Commissioner (AAC) in his order dated July 28, 1989 set aside the order of the revisional authority. The Appellate Assistant Commissioner had also held that nowhere in the assessment order, revisional authority had established the fact with valid data that the appellant had indulged in business transaction. According to the AAC, the assessee is doing only decorticating groundnut crop in his premises and collected certain charges for decorticating the groundnut.
2. The Joint Commissioner, by exercising his jurisdiction under section 34 of the Tamil Nadu General Sales Tax Act, 1959, issued a notice to the assessee stating that the orders passed by the AAC for the abovesaid two assessment years under consideration are erroneous and prejudicial to the interests of the Revenue. According to the Joint Commissioner, the order of AAC is erroneous for the following reasons :
(1) The order of AAC, Thanjavur, is bereft of appreciation of the evidence available and the findings of the revisional authority recorded clearly at pages 23-24 of the orders and also the conclusion and reasoning of the revisional authority made on the narrations found in the incriminating records;
(2) The orders of learned AAC are not based on fact findings with reference to each of the slips and incriminating records and therefore, it is not judicial.
3. For the abovesaid reasons, the Joint Commissioner interfered with the order passed by the AAC and set aside the same, by restoring a turnover of Rs. 1,74,368 and Rs. 9,93.786 involving a tax of Rs. 5,231 and Rs. 29,814 additional sales tax of rupees nil and Rs. 5,963 and penalty of Rs. 2,616 and Rs. 14,907 respectively.
4. It is against this order passed by the Joint Commissioner for the assessment years 1980-81 and 1981-82, the assessee is in appeal before this Court.
5. According to the learned counsel appearing for the assessee, in order to set aside the order passed by the AAC dated July 28. 1989, the Joint Commissioner has relied upon a report filed by the Assistant Commissioner, Thanjavur dated March 18, 1993. So also, by relying upon the reports filed on April 15, 1993 and May 11, 1993, the Joint Commissioner came to the conclusion that AAC was not correct in holding that the assessee is only decorticating the groundnut and is not indulging in the sale of groundnut. It was submitted that these reports were obtained from various ryots behind the back of the assessee, after the order was passed by the AAC on July 28, 1989. Therefore, according to the learned counsel, the Joint Commissioner has no jurisdiction to interfere with the order passed by the AAC, on the basis of those materials, which were gathered subsequently. It was further submitted that in order to interfere under section 34 of the Tamil Nadu General Sales Tax Act, with regard to the order passed by the AAC, the Joint Commissioner ought to have relied upon the materials available on record till the date of passing of the order by the AAC. On extraneous materials, it is not possible for the Joint Commissioner to exercise his jurisdiction under section 34 of the Act.
6. On the other hand, learned Additional Government Pleader (Taxes), while supporting the order passed by the Joint Commissioner, submitted that all those materials were gathered in front of the assessee and those materials would go to show that AAC has not applied his mind, while setting aside the order passed by the assessing authority. It was further submitted that the reports filed by various authorities would go to show that the assessee is a dealer in groundnut and he did not pay the tax on the sale of groundnut. Therefore, according to learned Additional Government Pleader (Taxes), it is not proper on the part of the assessee to say that the assessee is only decorticating groundnut and not selling the same.
7. We have heard the rival submissions. The fact remains that AAC on appeal, in his order dated July 28, 1989, set aside the order passed by the assessing authority and held that the assessee is only decorticating groundnut gathered from the ryots and the assessee is not a dealer in groundnut. Based upon the evidence available on record, AAC passed the abovesaid order dated July 28, 1989. According to the Joint Commissioner, the orders passed by the AAC for the assessment years under consideration are erroneous and prejudicial to the interests of the Revenue, because the materials gathered by the reports dated March 18, 1993, April 15, 1993 and May 11, 1993 were not considered by the AAC. It remains to be seen that all those reports were gathered after the order was passed by the AAC on July 28, 1989. While exercising jurisdiction under section 34 of the Act, the Joint Commissioner can revise the order passed by the authorities below, only on the basis of the materials available on record. The Joint Commissioner cannot rely upon the extraneous materials, which were not on record before the order was passed by the lower authorities. The Joint Commissioner, relying upon the reports dated March 18, 1993, April 15, 1993 and May 11, 1993, came to the conclusion that the assessee is a dealer in groundnut. This finding arrived at by the Joint Commissioner, on the basis of the subsequent materials gathered by the department, after the order was passed by the AAC dated July 28, 1989 is not sustainable.
8. Therefore, the orders passed by the Joint Commissioner for the assessment years under consideration are set aside and the assessments on this aspect with regard to the assessment years 1980-81 and 1981-82 are remitted back to the file of the assessing authority, with a direction to re-do the assessments on this aspect, in accordance with law, on merits, after giving opportunity of being heard, to the assessee. Accordingly, the appeals filed by the assessee are allowed. No costs.
9. Appeals allowed.