Judgment :- JANARTHANAM, J. The assessee-dealers/Tvl. DCW Limited, Sahupuram Post, comes within the jurisdiction of the Deputy Commercial Tax Officer, Tiruchendur. The said assessee-dealers reported a total and taxable turnover of Rs. 23, 85, 42, 268.13 and Rs. 23, 81, 81, 763.35 respectively for the assessment year 1986-87 in form 1 returns filed. 2. The assessing officer on a cheek of the accounts determined the taxable turnover, rate of tax and tax due as below : Taxable turnover Rate of tax Tax due Rs. Rs. 1. 1, 27, 18, 649.00 10 per cent 12, 71, 864.90 2. 23, 43, 54, 366.00 4 per cent 93, 74, 174.64 Total 24, 70, 73, 015.00 1, 06, 46, 039.54 Penalty at one and half times the tax due is also levied as the assessee-dealers were stated to have wilfully camouflaged the inter-State sales as stock transfers to depots for open market sale and the penalty had been determined at Rs. 11, 23, 002.00. 3. The aggrieved assessee-dealers filed an appeal in A.P. CST. 56189 before the Appellate Assistant Commissioner, (C. T.), Tirunelveli, and he, in turn, refixed the taxable turnover for the assessment year as below Rs. (i) Inter-State sales covered by valid "C" forms at 4 per cent 23, 43, 54, 366 (ii) Inter-State sales not covered by "C" forms at 10 per cent 29, 78, 604 (iii) Inter-State sales effected before obtaining R.C. Nos. by 57, 400 sellers at 4 per cent. (iv) DMR's (Delivery Money Receipt) disallowed and treated 3, 67, 513 as inter-State sales at 10 per cent. Total taxable turnover refixed .... 23, 77, 57, 883 Add : Exemption allowed : (a) Depot transfer covered with valid documents 46, 12, 247 (allowed). (b) Consignment sales covered with valid records 27, 54, 987 (allowed).(c) Cash discount and trade discount allowed 3, 72, 305 Add : Turnover remanded : Covered with defective "C" forms remanded for 14, 65, 730 rectification. ------------- Total turnover refixed ... 24, 69, 63, 152 He set aside the levy of penalty of Rs. 11, 23, 002. 4. The aggrieved assessee-dealers filed an appeal in M.T.A. No. 326 of 1993 before the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Madurai, and in the said appeal, the assessee-dealers challenged only the DMRS. disallowed and treated as inter-State sales at 10 per cent to the tune of Rs. 3, 67, 513. 5. 11, 23, 002. 4. The aggrieved assessee-dealers filed an appeal in M.T.A. No. 326 of 1993 before the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Madurai, and in the said appeal, the assessee-dealers challenged only the DMRS. disallowed and treated as inter-State sales at 10 per cent to the tune of Rs. 3, 67, 513. 5. During the pendency of the appeal, the Revenue filed enhancement petition in M.T.M.P. No. 56 of 1994 accompanied by an application for the condonation of delay of 193 days in filing the said petition. The Tribunal condoned the delay by order dated April 4, 1994. The assessee-dealers agitated the matter further in this Court by filing T.C. No. 5 16 of 1994 and this Court not having been satisfied with the reasons given by the Tribunal for the condonation of the delay so caused - emitted the matter back to the Tribunal for filing a proper affidavit explaining the delay caused in fling the said miscellaneous petition. 6. The Tribunal, thereafter, took the said enhancement petition for disposal on merits and after taking into consideration the relevant materials placed on record, however, dismissed the same by order dated August 1, 1995. 7. The Tribunal disposed of the main appeal M.T.A. No. 326 of 1993 by order dated March 11, 1996 and the operative portion of the order of the Tribunal is couched in paragraphs 4 and 5 of its order and they read as under : "4. We are in a fix to sit over of case which relates to 1986-87 with con" views taken by the lower authorities. The assessing authority and the inspecting authority who gathered the vital information to disprove the claim of depot transfer and consignment despatches are of the view that direct inter-State sales was camouflaged as depot transfer and consignment sales. Whereas the first appellate authority is of the view that the records are insufficient except in six cases wherein the direct inter-State sale is established the rest are only depot transfer and consignment despatches. The vital record, viz., delivery money receipt or DMR heavily relied on by the department are disowned by the appellant. He argues that no sufficient opportunity was granted for them to examine and found that who issued the same and for what purpose. They claim that no chance to cross-examine the concerned was also not provided by the department. The vital record, viz., delivery money receipt or DMR heavily relied on by the department are disowned by the appellant. He argues that no sufficient opportunity was granted for them to examine and found that who issued the same and for what purpose. They claim that no chance to cross-examine the concerned was also not provided by the department. The appellants heavily relied on the fact that not even a single instance of direct transaction between the out-State buyer is established by the department in spite of their efforts. 5. Even though the materials involved are many they are not properly explained and exposed and we feel that this is a fit case for de novo examination and orders. We feel the entire records has got to be examined afresh and finding given in each of the documents connected. We therefore, remit the same for de novo. In fine, the appeal is remanded. "8. Mr. C. Natarajan, learned Senior Counsel appearing for the assessee - dealers would assail sarcastically the order passed by the Tribunal. The Tribunal would state in its order in paragraph 4," * We are in a fix to sit over the case, which relates to 1986-87 with contrary views taken by the lower authorities". But that was not really so and what he would say is," we are in a fix to understand the very operative portion of the order of the Tribunal, as couched in paragraphs 4 and 5 ". 9. On the other hand, Mr. K. Ravi Raja Pandian, learned Special Government Pleader (Taxes) representing the Revenue, would say that the sum and substance of the paragraphs must have to be taken into consideration and if so taken, what the order would mean, according to him, is that the entire matter had been remitted back to the assessing officer and therefore, there is no ambiguity in that order. 10. We carefully scanned and sifted the rival submissions of either counsel. On the face of the order, as extracted above, we are unable to affix our seal of approval to the submission of Mr. K. Ravi Raja Pandian, learned Special Government Pleader (Taxes), representing the Revenue. 10. We carefully scanned and sifted the rival submissions of either counsel. On the face of the order, as extracted above, we are unable to affix our seal of approval to the submission of Mr. K. Ravi Raja Pandian, learned Special Government Pleader (Taxes), representing the Revenue. The remand order, if carefully scanned, would suffer from the following infirmities : (1) No rationale or reasoning is projected, impelling the Tribunal to remand the matter; (2) Nothing is discernible from the very order as to whether the matter has been remanded to the lower appellate authority or to the assessing officer;(3) It is also not discernible as to whether the remand is confined to the turnover challenged by the assessee before the Appellate Tribunal to the tune of Rs. 3, 67, 513 or whether the remand is wide enough to cover the entirety of the transactions of the assessee relatable to the assessment year 1986-87 for a de novo enquiry and passing orders in accordance with law. 11. On the face of the infirmities as above, we are of the view that the matter could be remitted back to the Tribunal, after setting aside its order for fresh consideration in accordance with law. 12. At this juncture, Mr. C. Natarajan, learned Senior Counsel would intrude and represent that it would be better to consider the legal question as to whether the Tribunal would be having the necessary and requisite power under section36(3) (a) (i) of the Tamil Nadu General Sales Tax Act, 1959 (for short, "the TNGSTA") to enhance the assessment without enhancement petition being filed by the Revenue, which is in the nature of cross-objection under section 36(3-A) which had been inserted by Act 22 of 1982-G.O. Ms. No. 1164 C. T. & R. E. dated October 15, 1982-Notification dated October 27, 1982 effective from November 1, 1982. On this question, the said learned counsel appearing for the assessee and learned Special Government Pleader, representing the Revenue would express opposing views. 13. To unfold the knot in issue covered by the question, our attention had been drawn to certain precedents of the apex Court and this Court as well. On this question, the said learned counsel appearing for the assessee and learned Special Government Pleader, representing the Revenue would express opposing views. 13. To unfold the knot in issue covered by the question, our attention had been drawn to certain precedents of the apex Court and this Court as well. (i) In M. Chokkalingam v. State of Tamil Nadu 1991 MAD 131 (Mad.) [App.], the question that arose for consideration was as to whether the enhancement petition filed by the department in the dealer's appeal before introduction of provision therefor was maintainable. A Division Bench of this Court, consisting of Dr. A. S. Anand, C.J. (as he then was) and Kanakaraj, J., held that even before the introduction of section 36(3-A) in the Tamil Nadu General Sales Tax Act, 1959, providing for the filing of enhancement petitions by the department where appeals are filed by the dealer, the Appellate Tribunal had the power under section 36(3)(a)(i) of the Act, to enhance assessments. Therefore, an application for enhancement filed by the department before the Tribunal during the pendency of the dealer's appeal, before the introduction of section 36(3-A) would be maintainable and the Tribunal entitled to pass orders on the application after putting the dealer on notice.(a) In so holding the Bench further said that after the introduction of section 36(3-A) in the statute book, such an application has to conform to the period of limitation prescribed thereunder. (ii) In State of Tamil Nadu v. Jeevanlal Ltd. 1996 SC 2275 (SC), the question that came up for consideration was as to whether Board of Revenue has suo motu powers of revision under section 34(2) (b) when the order of the Appellate Assistant Commissioner was made the subject-matter of appeal before the Appellate Tribunal. In that context, what the Supreme Court said at page 105 is relevant for our present purpose and it reads as under : Section 36, sub-section (3) (a) (i) clearly indicates that in an appeal taken out by the assessee before the Tribunal, the Tribunal can even enhance the assessment or penalty or both. It is obvious that the assessee who is an appellant would never urge for enhancement of assessment or penalty. His appeal would be confined to the prayer of getting the assessment reduced or annulled. In the process the Tribunal may even confirm such assessment by dismissing the appeal wholly. It is obvious that the assessee who is an appellant would never urge for enhancement of assessment or penalty. His appeal would be confined to the prayer of getting the assessment reduced or annulled. In the process the Tribunal may even confirm such assessment by dismissing the appeal wholly. Consequently the contingency envisaged by section 36, sub-section (3) (a) (i) empowering the Appellate Tribunal to enhance the assessment or penalty in appeal by the assessee would obviously contemplate a situation where the Revenue being respondent in such appeal would seek such enhancement by filing cross-objections. Of course, before deciding such a grievance put forward by the Revenue seeking such enhancement the appellant has to be given reasonable opportunity of being heard as contemplated by sub-section (3) of section 36 itself. But subject to that procedural safeguard, there is no prohibition against the Appellate Tribunal in considering the question of enhancement of assessment or penalty in an appeal preferred by the assessee against that part of the order of the Appellate Assistant Commissioner, which is against him, if the Revenue as respondent in appeal seeks to get the other part of the order which is against it also reconsidered by the Tribunal in exercise of its jurisdiction under section 36(3) (a) (i). Consequently, it must be held that once the order of the Appellate Assistant Commissioner is brought on the anvil of scrutiny of the Appellate Tribunal by the dissatisfied assessee by filing appeal against the adverse part of that order, the entire order becomes open for scrutiny of the Appellate Tribunal and the entire controversy qua that order vis-a-vis both the contesting parties, namely, the assessee on the one hand and the Revenue on the other comes under the focus of scrutiny of the Tribunal. Once the entire appellate order being partly in favour and partly against the assessee becomes subject to the jurisdiction of the Appellate Tribunal, the bar of section 34(2) (b) against the revisional powers of the Board of Revenue would operate in its full swing and such an order of the Appellate Assistant Commissioner which is pending scrutiny before the Appellate Tribunal will go out of the ken of revisional jurisdiction conferred on the Board of Revenue under section 34. "(iii) In State of Kerala v. Vijaya Stores 1978 SC 214 (SC), the short question raised in the appeal by special leave was as to whether the Appellate Tribunal has power under section39(4) of the Kerala General Sales Tax Act, 1963 (for short, "the KGSTA") to enhance the assessment in the absence of any appeal or cross-objections by the Revenue (a) Sub-section(2) of section39 of the KGST Act, 1963 reads as under : (2) The officer authorised under sub-section (1) or the person against whom an appeal has been preferred, as the case may be, on receipt of notice that an appeal against the order of the Appellate Assistant Commissioner has been preferred under sub-section (1) by the other party, may, notwithstanding that he has not appealed against such order or any part thereof, file within thirty days of the receipt of the notice, a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Appellate Assistant Commissioner, and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (1). "(b) The said sub-section is more or less akin to the provisions adumbrated under section 36(3-A) of the TNGST Act, 1959 and it reads as under : Section 36(3-A) : Within a period of sixty days from the date of receipt of notice that an appeal against the order passed by the Appellate Assistant Commissioner under sub-section (3) of section 31 or an order passed by the Deputy Commissioner under sub-section (3) of section 31-A or sub-section (1) of section 32 has been filed, any assessing authority or his representative appearing before the Appellate Tribunal may file an enhancement petition or a petition for restoration of the assessment or penalty or both, fully or partially, as the case may be, in the prescribed form and in the prescribed manner against the order of the Appellate Assistant Commissioner or the Deputy Commissioner as the case may be. The Appellate Tribunal may, after giving a reasonable opportunity to the appellant and the representative of the assessing authority of being beard pass such orders on the petition as it think., fit :rovided that the Appellate Tribunal may admit an enhancement petition or a petition for restoration of the assessment or penalty or both, fully or partially as the case may be, presented after the expiration of the said period, if it is, satisfies that the assessing authority or his representative had sufficient cause for not filing such petition within the said period. "(c) Sub-section(4) of section39 of the Kerala General Sales Tax Act, 1963 reads as under : In disposing of an appeal, the Appellate Tribunal may, after giving the parties a reasonable opportunity of being heard either in person or by a representative, - (a) in the case of an order of assessment or penalty, - (i) confirm, reduce, enhance or annul the assessment or penalty or both (ii) set aside the assessment and direct the assessing authority to make a fresh assessment after such further enquiry as may be directed; or (iii) pass such other orders as it may think fit; or (b) in the case of any other order, confirm, cancel or vary such order. "(d) The more or less in pari materia provision to the said sub-sectionis traceable to section36(3) of the TNGST Act, 1959 and it reads as under : Section 36(3) : In disposing of an appeal, the Appellate Tribunal may, after giving the appellant a reasonable opportunity of being heard, and for sufficient reasons to be recorded in writing - (a) in the case of an order of assessment - (i) confirm, reduce, enhance, restore fully or partially, as the case may be, or annul the assessment or the penalty or both; (ii) set aside the assessment and direct the assessing authority, to make a fresh assessment after such further inquiry as may be directed; or (iii) pass such other orders as it may think fit; or(b) in the case of any other order, confirm, cancel or vary such order : Provided that at the hearing of any appeal against an order of the Appellate Assistant Commissioner or the Deputy Commissioner, the ' [Government] shall have the right to be heard [..............] by a representative : Note. - Item 1 : the expression 'Government' was substituted for the expression 'assessing authority' and item 2, i.e., the expression 'either in person' was omitted by Act 78 of 1986 - Effective from January 1, 1987 Provided further that, if the appeal involves a question of law on which the Appellate Tribunal has previously given its decision in another appeal and either a revision petition in the Special Appellate Tribunal against such decision or an appeal in the Supreme Court against the order of the Special Appellate Tribunal thereon is pending, the Appellate Tribunal may defer the hearing of the appeal before it, till such revision petition in the Special Appellate Tribunal or the appeal in the Supreme Court is disposed of. "(e) For answering the question so posed, the discussion entered into by the Supreme Court in the case of Vijaya Stores 1978 SC 214, is relevant for the present purpose and it reads as under : Considerable emphasis was laid by counsel for the appellant upon sub-section (4), which indicates what things the Appellate Tribunal may do while disposing of an appeal and, in particular, it was pointed out that under sub-section (4) (a) (i) the Appellate Tribunal has been given power 'to enhance the assessment' while disposing of an appeal against an order of assessment after giving the party a reasonable opportunity of being heard and it was urged that such power could be exercised even when the appeal against the Appellate Assistant Commissioner's assessment order had been preferred by the assessee and not by the department. To place such a construction on sub-section (4) (a) (i) would amount to ignoring the scheme of section 39. Sub-section (1) provides for an appeal being preferred against an assessment order passed by the Appellate Assistant Commissioner under section 34(3) either by the assessee or by the department through an officer empowered by the Government in that behalf. Further, sub-section (2) provides for filing of cross-objections by a party, against whom an appeal has been preferred, notwithstanding that he has not himself appealed against the decision or any part thereof and such cross-objections are to be disposed of by the Appellate Tribunal as if it were an appeal. Further, sub-section (2) provides for filing of cross-objections by a party, against whom an appeal has been preferred, notwithstanding that he has not himself appealed against the decision or any part thereof and such cross-objections are to be disposed of by the Appellate Tribunal as if it were an appeal. Then comes sub-section (4), which enumerates the various powers conferred upon the Appellate Tribunal while disposing of such appeals (including cross-objections) and the power conferred upon the Appellate Tribunal under sub-section (4) (a) (i) is 'to confirm, reduce, enhance or annul the assessment', the power to enhance the assessment must be appropriately read as relatable to an appeal or cross-objections filed by the department. The normal rule that a party not appealing from a decision must be deemed to be satisfied with the decision, must be taken to have acquiesced therein and be bound by it, and, therefore, cannot seek relief against a rival party in an appeal preferred by the latter, has not been deviated from in sub-section (4) (a) (i) above. In other words, in the absence of an appeal or cross-objections by the department against the Appellate Assistant Commissioner's order the Appellate Tribunal will have no jurisdiction or power to enhance the assessment. Further, to accept the construction placed by the counsel for the appellant on sub-section (4) (a) (i) would be really rendering sub-section (2) of section 39 otiose, for if in an appeal preferred by the assessee against the Appellate Assistant Commissioner's order the Tribunal would have the power to enhance the assessment, a provision for cross-objections by the department was really unnecessary. Having regard to the entire scheme of section 39, therefore, it is clear that on a true and proper construction of sub-section (4) (a) (i) of section 39 the Tribunal has no jurisdiction or power to enhance the assessment in the absence of an appeal or cross-objections by the department." 14. Having regard to the entire scheme of section 39, therefore, it is clear that on a true and proper construction of sub-section (4) (a) (i) of section 39 the Tribunal has no jurisdiction or power to enhance the assessment in the absence of an appeal or cross-objections by the department." 14. From a scrutiny of the aforesaid quoted decisions, it is rather crystal clear that the decision of the Division Bench of this Court in the case of M. Chokkalingam 1991 MAD 131 (Mad.) [App.] and the decision of the apex Court in the case of Jeevanlal Ltd. 1996 SC 2275, had no occasion to consider the power of the Tribunal to enhance the assessment under section 36(3)(a)(i) of the TNGST Act subsequent to the insertion of the amended provision of section 36(3-A) of the TNGST Act and therefore, those two decisions may not be of any help in solving the tangle posed in the question for consideration. On the other hand in the decision of the apex Court in the case of Vijaya Stores 1978 SC 214, the question as now involved for consideration happened to be considered in the light of in pari materia provisions available in the Kerala General Sales Tax Act, 1963 as had been referred to by us earlier. Therefore, the dictum laid down by the said decision is applicable on all fours to the facts of the case on hand, and in that view of the matter, we are of the view that the Tribunal has no power at all to enhance the assessment under section 36(3)(a)(i) of the TNGST Act when especially the enhancement petition filed invoking the sanguine provisions adumbrated under section 36(3-A) of the TNGST Act has been dismissed, as time-barred prior to the disposal of the main appeal in M. T. A. No. 326 of 1993. The corollary conclusions to flow therefrom is that if the demand order of the Tribunal is to be construed in the manner focussed by Mr. K. Ravi Raja Pandian, learned Special Government Pleader, representing the Revenue in the sense of the remand having been made by the Tribunal to consider de novo of transactions of the assessee relatable to the assessment year 1986-87, the order of the Tribunal is certainly wrong. 15. K. Ravi Raja Pandian, learned Special Government Pleader, representing the Revenue in the sense of the remand having been made by the Tribunal to consider de novo of transactions of the assessee relatable to the assessment year 1986-87, the order of the Tribunal is certainly wrong. 15. For the reasons as above, we remit the matter back to the Tribunal after setting aside the order of the Tribunal, for consideration of the turnover of Rs. 3, 67, 513 as disputed by the assessee-dealers and nothing further. There shall, however be no order as to costs, on the facts and in the circumstances of the case.