1965 (9) TMI 39

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....nal to decide the question of enhancement of tax pressed on behalf of the applicant on 17th August, 1965? (2) Whether, in the facts and circumstances of the case, the non-applicant's second appeal No. 205/III/62 should not have been dismissed as not pressed? 2.. The material facts, as they appear from the statement of the case, which are also undisputed, may be shortly stated. The assessee is a registered dealer, who mainly carries on the business of manufacturing and selling bidis. His head office is at Sihora in Jabalpur district and his branch offices are situate at several places in this State and also in Uttar Pradesh. For the period 1950-51 (Diwali year), the Assistant Commissioner of Sales Tax, by his order dated 31st August, 1....

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....ght if he is convinced that the appellate authority is disposed to enhance the assessment -he would be in a position to prevent the appellate authority from exercising the power of enhancement. It has, therefore, been held that it is not open to an assessee, who has preferred an appeal, to withdraw it so as to prevent the appellate authority from enhancing the assessment. In regard to income-tax, the leading English case is R. v. Income-tax Special Commissioners; Ex parte Elmhirst[1935] All E.R. 808. This was followed in Commissioner of Income-tax, Punjab v. Nawab Shah Nawaz Khan[1938] 6 I.T.R. 370. The principle was adopted and applied in a case under the Central Provinces and Berar Sales Tax Act, 1947, also in Mohanlal Hargovinddas v. Sta....

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....acts, are seeking to do something which they are not entitled to do. On the contrary, they are performing their plain duties and there is no case at all for prohibition.' The Court of Appeal affirmed this decision. Romer, L.J., stated (at pages 395-396): 'The question that we have to determine in this case is whether, when a taxpayer has served a notice of appeal and so brought into effect the machinery designed by section 133 for the purpose of completing the assessment, he can stop the further working of that machinery either by withdrawing the appeal or by refusing to be present at the hearing of the appeal. If that be right and he can in that way stop the working of the machinery, then, as it appears to me, he is in a position to pre....