1. The petitioners were assessed to Sales-tax under the Kerala General Sales Tax Act (hereinafter referred to as the Act) in connection with a contract entered into by them for slaughter tapping of rubber trees. Before the assessing authority (the Sales Tax Officer, Nedumangad) they contested their liability for being taxed on the ground that they were associations of persons who had discontinued their business on the expiry of the period of the contract. The assessing authority overruled the objection and assessed the petitioners to the best of its judgment. Against this order they preferred appeals before the Appellate Assistant Commissioner, Trivandrum, under S 34 of the Act. The Appellate Assistant Commissioner as per order dated 12-5-1976 confirmed the order of the assessing authority regarding liability to assessment but remanded the cases to the assessing authority with a direction to pass fresh assessment orders in the light of certain observations made in the appellate order. Even after remand, the petitioners took the stand that they were not liable to be assessed. The assessing authority held that the plea was not available to them in the light of the order of the Appellate Assistant Commissioner. A fresh assessment order was accordingly passed. The petitioner again preferred appeals before the Appellate Assistant Commissioner during the hearing of which their objection regarding liability to assessment was reiterated. The Appellate Assistant Commissioner refused to consider the point. The appeals were dismissed. Against the order of dismissal Tax Appeals Nos. 817 to 820 of 1977 were filed under S.39 of the Act before the Kerala Sales Tax Appellate Tribunal. The Tribunal held that since no appeals had been filed against the orders of the Appellate Assistant Commissioner dated 12-4-1976, those orders became final so far as the liability to Sales-tax was concerned and that it was not open to the petitioners to re-agitate the matter in the appeals against the final orders of assessment. The above conclusions were reached basing on the analogy in S.105 (2) of the Code of Civil Procedure. In these revision cases the petitioners challenge the orders of the Appellate Tribunal.

2. The Act, as already noted, provides an appeal to the Appellate Assistant Commissioner under S.34 from an assessment order under S.17 (3) and a second appeal to the Appellate Tribunal under S.39 against the appellate order of the Appellate Assistant Commissioner. S.34 (3) and S.39 (4) of the Act contemplate remand of cases by the Appellate Assistant Commissioner and Appellate Tribunal respectively for fresh enquiry and disposal. The question that arises for consideration in these cases is whether the principles underlying S.105 (2) of the Code of Civil Procedure are to be applied as part of the general law to orders of remand by the Appellate Assistant Commissioner and the Appellate Tribunal. It is only proper that we should refer to S.105 of the Code of Civil Procedure at this stage. S.105 of the Code of Civil Procedure reads:

"105. Other orders. (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as aground of objection in the memorandum of appeal.

(2; .Notwithstanding anything contained in sub-section (1) where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."

It is noted that S.105 in its present form found a place in the Code of Civil Procedure only when it was re-enacted in the year 1908. (For the history of the section see Satyadhyan v. Smt. Deorajin Debi, AIR. 1960 SC. 941.) Under S.363 of the Code of 1859 no appeal could be filed against any order passed in the course of a suit; but if the