JUDGMENT
Ramanujam, J.
1. The question that arises in this tax case is as to whether the Tribunal has the power to enhance an assessment exercising its appellate power under section 36 of the Tamil Nadu General Sales Tax Act, 1959. The assessee contended before the Tribunal that the Tribunal has no power to enhance an assessment and the Tribunal has accepted that contention, notwithstanding section 36(3)(a)(i) of the Act before its amendment by Act No. 22 of 1982, by which the Tribunal has been specifically conferred with the power of enhancement without any qualification in exercise of the same. The reasons given by the Tribunal for denying itself the power of enhancement are these : As the appeal before the Tribunal can arise only in respect of questions dealt with by the Appellate Assistant Commissioner and the enhancement petition filed by the State relates to matters not dealt with by the Appellate Assistant Commissioner, the Tribunal has no power to deal with the enhancement petition filed by the Revenue. In respect of that view, the Tribunal has relied on the decisions in State of Orissa v. Orissa Polish Works [1970] 26 STC 480, Central Camera Co. (P.) Ltd. v. Government of Madras [1971] 27 STC 112 and Easun Engineering Co. Ltd. v. Government of Madras [1974] 33 STC 350. But we find the said decisions have no relevance on the question of the power of the Tribunal to enhance. As regards the power of enhancement is concerned, a Division Bench of this Court in Deputy Commissioner of Commercial Taxes v. Panayappan Leather Industries [1981] 47 STC 88 to which one of us (Ratnam, J.) was a party, has categorically ruled that the Tribunal has got the power to enhance if the enhancement is sought by the Revenue and the power to enhance is not subject to any condition or limitation. Construing the scope of section 36(3)(a)(i) of the Tamil Nadu General Sales Tax Act, 1959, the Bench held that the Tribunal has got the power to decide the appeal prejudicial to the assessee in the sense, not only by way of dismissing the appeal but even by way of enhancing the assessment or penalty, in an appeal preferred by the assessee and that the said section does not refer to the setting aside of the order of the Appellate Assistant Commissioner or the order of the Deputy Commissioner, but it contemplates the setting aside of the assessment itself and directing the assessing authority to make a fresh assessment after such further enquiry as may be directed, and this indicates that in an appeal preferred by the assessee under section 36, the entire assessment is set at large before the Tribunal, and the Tribunal can go into the correctness or otherwise of the order of the assessing authority himself and not the order of the Appellate Assistant Commissioner alone against which the appeal has been filed. The view taken in that case has been referred to and consistently followed in a series of decisions in (T.C. No. 1284 of 1977 dated 15th April, 1982) State of Tamil Nadu v. Kutty Flush Doors & Furniture Co. (P.) Ltd. [1984] 57 STC 217, (T.C. No. 1304 of 1977 dated 26th August, 1982) State of Tamil Nadu v. Pyarelal Malhotra [1984] 57 STC 215 and (T.C. No. 1564 of 1977 dated 9th February, 1983) State of Tamil Nadu v. Rallis India Limited [1984] 57 STC 218. In the face of the said consistent view taken by this Court, the view taken by the Tribunal that it cannot enhance since the subject-matter of enhancement petition was not before the Appellate Assistant Commissioner cannot be legally sustained. The tax case is therefore allowed. Since the Tribunal has not gone into the merits of the enhancement petition filed by the Revenue and it has dismissed the enhancement petition only on the ground that it is not maintainable, the matter has to go back to the Tribunal and the Tribunal will have to dispose of the enhancement petition on merits. There will be no order as to costs.
