PER. B. S. KAPADIA, J. ( 1 ) THE Gujarat Sales Tax Tribunal has referred the following question to this court under Section 69 of the Gujarat sales Tax Act, 1969 (the Act for short) at the instance of the State of Gujarat :"whether on the facts and in the circumstances of the case, the Gujarat sales Tax Tribunal was right in law in allowing the opponent-dealer to raise the issue about the transactions of sales of tea, soda lemon, cold-drinks, ice-cream, etc. being in the nature of service to the customers and not of sale and as such not exigible to tax in the light of the judgment of the Supreme Court in the case of Northern India Caterers (India) ltd. v. Governnor of Delhi (45 S. T. C. 212)?" ( 2 ) THE facts in brief for the purpose of deciding the aforesaid question can be stated as under: ( 3 ) M/s Gandhi Cold-drink House is a partnership firm doing business of preparing tea, soda lemon, cold-drinks, etc. in a restaurant. Said firm is registered as a dealer under the provisions of the bombay Sales Tax Act, 1959 and under the Gujarat Sales Tax Act, 1969. ( 4 ) ON 24-7-1974 the Sales Tax Officer paid surprise visit to the place of business of M/s Gandhi Cold-drink House, opponent herein, and seized the books of accounts along with other materials. The opponent firm was already assessed by the Sales Tax Officer for the period upto Aso Vad 30 of Samvat Year 2028 and therefore, he reassessed the opponent-dealer for the period from April 1, 1967 to Aso Vad 30 Samvat Year 2028 and assessed it for the period from Kartik sud 1 of Samvat Year 2029 to July 24, 1974. He had also levied penalties under sections 36 (2) (c) and 36 (3a) of the bombay Sales Tax Act, 1959, and under sections 45 (2) (c) and 45 (6) of the gujarat Sales Tax Act, 1969 in respect of the period of assessments. ( 5 ) AGAINST these orders of the Sales tax Officer the opponent preferred appeal before the Assistant Commissioner of sales Tax, who partially allowed its first appeals. Against the orders passed by the assistant Commissioner of Sales Tax the opponent filed 9 second appeals before the Gujarat Sales Tax Tribunal. ( 5 ) AGAINST these orders of the Sales tax Officer the opponent preferred appeal before the Assistant Commissioner of sales Tax, who partially allowed its first appeals. Against the orders passed by the assistant Commissioner of Sales Tax the opponent filed 9 second appeals before the Gujarat Sales Tax Tribunal. ( 6 ) DURING the course of hearing of the said Second Appeals one of the grounds which was taken on behalf of the opponent dealer was that prior to the rendering of the judgment of the Supreme court in the case of Northern India caterers (India) Limited v. Governor of delhi (45 S. T. C. 212) the Sales Tax authorities have proceeded on the basis that the transactions of the opponent dealer are in the nature of sales whereas it then transpired on the basis of the clarification of the law laid down by the supreme Court in the aforesaid case that number of transactions of the opponent dealer were in the nature of service and not sales and therefore, they could not be exigible to tax. ( 7 ) TO the said plea of the opponent dealer the learned Advocate appearing for the Revenue before the Tribunal had raised an objection that the said plea could not be entertained for the first time at the stage of second appeal and stated that the question whether the transactions or the earlier period or at least some of them were in the nature of service or sales was never an issue before the lower authorities. He, therefore, submitted that in absence of any finding on the said point by the lower authorities the Tribunal could not entertain the said issue much less enter into merits thereof. ( 8 ) THE Tribunal after considering the authorities cited before it permitted the opponent dealer to raise the said plea at the stage of hearing of the second appeals and set aside the orders passed by the Assistant Commissioner of Sales tax. The Tribunal remanded the matters to the Assistant Commissioner of Sales tax for disposal in accordance with law after giving reasonable opportunity to the opponent dealer for producing evidence to show that in some of its transactions what was involved was mere service and not sale of soft-drinks, ice-cream, etc. The Tribunal remanded the matters to the Assistant Commissioner of Sales tax for disposal in accordance with law after giving reasonable opportunity to the opponent dealer for producing evidence to show that in some of its transactions what was involved was mere service and not sale of soft-drinks, ice-cream, etc. ( 9 ) AGAINST the said order of remand the State of Gujarat has made an application to the Tribunal under Section 69 of the Act for making a reference and accordingly the aforesaid question has been referred to this Court. ( 10 ) THE question whether a fresh question of law or a fresh mixed question of law and facts should be permitted to be raised for the first time before the tribunal or not requires to be decided in the light of the powers conferred on the Tribunal for hearing the appeals. Under Section 65 of the Act the Tribunal is empowered to decide the appeal. That very Section confers powers on the assistant Commissioner, the commissioner and the Tribunal for hearing the appeals. There are no restrictions on the Tribunal in hearing the appeal. The Tribunal has wide powers to decide the question of facts as well as law while deciding the appeals filed before it. It is open to the appellant to prefer appeal either before the commissioner or before the Tribunal against the order passed by the Assistant commissioner. Once when the appeal is preferred before the Tribunal it is within its jurisdiction to decide it as per the provisions of Section 65 (6) of the Act. When that is so, the Tribunal had all powers to decide the appeals involving questions of facts as well as law. ( 11 ) THE next question would be, whether new grounds which affect the very jurisdiction of the Sales Tax authorities to levy tax, can be raised before the Tribunal in view of the decision of the Supreme Court in the case of northern India Caterers (India) Ltd. (supra ). Similar question had arisen before us in Sales Tax Reference No. 10 of 1988 which was decided by us on 15/16-9-1992. Similar question had arisen before us in Sales Tax Reference No. 10 of 1988 which was decided by us on 15/16-9-1992. In the said case the question was with regard to giving certain concession by the assessee before the assistant Commissioner of Sales Tax in appeal on the point of law and thereafter the assessee seeking to raise the said question in view of the judgment of this court in the case of M/s Vasuki carborandum Works v. The State of gujarat (43 S. T. C. 294 ). This Court considered the said point and rejected the argument advanced by the learned agp in the said case that once when the concession is given before the assistant Commissioner on a point of law the same cannot be raised again before the Tribunal. In the said case we have also considered and relied on the judgment of the Full Bench of this Court in the case of the Commissioner of Income tax, Gujarat-I v. Cellulose Products of india Ltd. , 151 I. T. R. 499 wherein the full Bench has observed as under:"we understand these decisions to lay down certain principles which appear to us to be clear beyond doubt. When an assessee files an appeal against an assessment order, he may object to the amount of income assessed, he may object to the amount of tax determined, to the amount of loss computed, to the status under which he is assessed or he may object to his liability to be assessed. The range of appeal extends to the entire range of questions that could be raised at the stage of assessment. The assessee may not be aggrieved with certain of the decisions taken by the ITO and, hence, naturally the appeal would not relate to those decisions. Though the entire range of assessment is open to challenge in the appeal and all the decisions taken by the ito are liable to be challenged in the appeal, the assessee may confine his objection to the assessment to certain only of the decisions taken by the ITO, expressly or impliedly. The subject-matter of the appeal may be limited to some part or other of the assessment order to which the assessee really takes objection. Therefore, he would be seeking relief in regard to that matter in relation to which he has objection in the matter of assessment. The subject-matter of the appeal may be limited to some part or other of the assessment order to which the assessee really takes objection. Therefore, he would be seeking relief in regard to that matter in relation to which he has objection in the matter of assessment. The scope of relief sought by the assessee in appeal determines the subject-matter of the appeal. That may have to be inferred since the assessee may not indicate in specific terms what the scope of the relief that he seeks in appeal is. This has quite often to be understood from the range of attack made on the assessment order as reflected in the grounds of appeal. The contours of the challenge, as so reflected, would determine the scope of the subject-matter of the appeal. In regard to such subject-matter, if he chooses to make challenge on grounds other than those raised by him, it would be open to him to seek to urge such grounds. Indeed, it may be possible that he seeks and obtains relief sought by him in the appeal by a different approach, an approach not reflected in his appeal memorandum. Whether he should be allowed to make that approach or not, is not a matter of jurisdiction. It is a matter of discretion which should be understood as distinct from jurisdiction. It is open, in the exercise of discretion, to an appellate authority vested with powers of accepting or rejecting fresh ground to entertain a fresh ground or not. Of course he has to act judicially, but this discretion is distinct from the jurisdiction with which alone we are concerned here. It might happen that before he came to the tribunal, the assessee had not viewed the question urged by him for the purpose of seeking the relief in the appeal from the proper perspective, a perspective from which he could have successfully mounted an assault on the order of assessment. In all these situations, in an appeal before the Tribunal, he is free to make a fresh approach, present his case from a different perspective and raise new grounds in support of the relief sought by him. The fact that he has failed to make that approach before the first appellate authority should not stand in the way of his making the new approach. The fact that he has failed to make that approach before the first appellate authority should not stand in the way of his making the new approach. But all this must be related to the same subject-matter as was in appeal before the first appellate authority. If the subject-matter remains the same, the new case presented by him to obtain relief sought in respect of such subject-matter should be permitted. If it is made in the first instance in the appeal memorandum before the Tribunal, there is no question of exercising discretion at that stage. When such a plea is not before the appellate Tribunal, when the appeal is filed, but is raised later, the question whether it should be allowed or not is a matter of discretion as mentioned. The fact that the assessee had failed to make the approach which he makes before the tribunal before the first appellate authority should not in any way preclude him from making that approach. "on the point of subject-matter the Full bench has observed as under in the said judgment:"speaking on the subject-matter, it may happen that substantially a claim is urged by an assessee assuming that he is entitled to that claim under a certain provision of law indicated by him. It may be that he is entitled to relief in respect of such claim or part of it not because of that provision of law. For the mere reason that he does not refer to or advert to the provision appropriately applicable will be no reason to deny him the right to urge his case, since, in such case also, the subject-matter will not change by reason of allowing the question to be raised. "ultimately in the last paragraph of the said judgment the Full Bench has observed as under:". . . . THE relief which the assessee may get in regard to the computation of capital, he may get to some extent even if a different approach is made to the computation of capital, viz. , by permitting the plea that debts and liabilities ought not to be deducted. Therefore, the subject-matter would remain the same notwithstanding allowing such a ground to be raised. No doubt it is not easy always to delineate the contours of the subject-matter. Facts of each case will have to be taken into account for that purpose. , by permitting the plea that debts and liabilities ought not to be deducted. Therefore, the subject-matter would remain the same notwithstanding allowing such a ground to be raised. No doubt it is not easy always to delineate the contours of the subject-matter. Facts of each case will have to be taken into account for that purpose. In the case before us, we have to hold that the question referred to us has to be answered in the affirmative, that is, in favour of the assessee and against the Revenue. We do so. " ( 12 ) IN view of the aforesaid observations made by the Full Bench of this Court it is clear that if the subject-matter remains the same, matter can be argued from different approach by raising new grounds also. In the present case Mr. Mehta, learned A. G. P. has not disputed that the subject-matter of the second appeals was the entire assessment order and reassessment order passed by the assistant Commissioner of Sales Tax in first appeals. When that is so, new ground which was sought to be raised by the opponent-assessee has been rightly allowed to be raised by the Tribunal and that does not in any way change the subject-matter of the appeals pending before the Tribunal. Even otherwise in view of the reasoning given by the tribunal the new ground sought to be raised by the opponent affected the very jurisdiction of the Sales Tax Authority in the matter of levying tax. We broadly agree with the reasoning given by the Tribunal for permitting the opponent-dealer to raise the new ground. ( 13 ) IN view of the above discussion we answer the question in the affirmative in favour of the assessee and against the revenue. Accordingly the Reference stands disposed of with no order as to costs. Reference answered accordingly. .