Remand orders and maintainability: tribunal cannot rely on non-existent facts, and a pure remand is not appealable on merits.

The High Court held that the Tribunal acted on a non-existent factual premise by assuming the first appellate authority had recorded a finding on the merits of the reassessment under section 21 of the U.P. Trade Tax Act, 1948. In fact, the appellate authority had only remanded the matter for fresh consideration after granting a hearing, without deciding the controversy. On that basis, the Tribunal was not justified in setting aside the remand order or quashing the reassessment proceedings. The Court also held that a second appeal was not maintainable against a pure remand order that created no adverse finding on merits. The revision was allowed and the remand order restored.

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Issues: (i) Whether the Tribunal was justified in setting aside the first appellate authority's remand order and quashing the reassessment proceedings under section 21 of the U.P. Trade Tax Act, 1948 on the basis of assumed facts. (ii) Whether the second appeal before the Tribunal was maintainable against an order of remand that recorded no finding on merits.

Issue (i): The reassessment proceedings under section 21 were challenged before the first appellate authority only on the ground of denial of opportunity of hearing. The first appellate authority did not record any finding that the information relied upon by the Department was unrelated to the dealer, but merely remanded the matter for fresh consideration after giving an opportunity of hearing. The Tribunal proceeded on the erroneous assumption that such a finding had been recorded and interfered with the remand order on a factual premise that did not exist. An order founded on non-existent facts is perverse and cannot be sustained.

Conclusion: The Tribunal was not justified in setting aside the remand order and quashing the proceedings under section 21.

Issue (ii): An order of remand restoring the matter for fresh consideration and not deciding the dispute on merits does not create a grievance against the party in whose favour the remand is made. Since the first appellate authority had only directed a fresh opportunity of hearing and had recorded no adverse finding on merits, the second appeal before the Tribunal was not maintainable.

Conclusion: The second appeal before the Tribunal was not maintainable.

Final Conclusion: The revision was allowed, the Tribunal's order was set aside, and the remand order of the first appellate authority was restored.

Ratio Decidendi: A tribunal cannot interfere with a remand order on the basis of facts not found in the record, and an appeal is not maintainable against a remand order that does not decide the controversy on merits.

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