1996 (3) TMI 469

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....justified in confining itself only to the examination in second appeal against the order of dismissal in default of the justification of that order or could also go into the merits of the case under section 22 of the Central Provinces and Berar Sales Tax Act, 1947?" 2.. The facts giving rise to the reference may now briefly be stated. For the period 1st October, 1947, to 30th September, 1948, the assessee was assessed to sales tax by the Assistant Commissioner, Sales Tax, by his order dated 5th July, 1954. The assessee went up in appeal under sub-section (1) of section 22 of Central Provinces and Berar Sales Tax Act, 1947, read with rule 53 of the Rules made thereunder to the Deputy Commissioner of Sales Tax. On 23rd June, 1958, the d....

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....rocedure as may be prescribed and after such further enquiry as it may think fit, the appellate authority, in disposing of any appeal under sub-section (1), may- (a) confirm, reduce, enhance or annul the assessment, or (b) set aside the assessment or penalty, or both, and direct the Commissioner or the person appointed under section 3 to assist the Commissioner to make a fresh assessment after such further inquiry as may be directed, or (c) in other cases, pass such orders as it may think fit." Under rule 53(2) and (4) of the Central Provinces and Berar Sales Tax Rules, 1947"(2) An appeal against an original order passed by the Sales Tax Officer or the Assistant Sales Tax Officer, Non-residents' Circle, or by an Assistant Commissio....

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....ith rule 53(4) ibid of going up in second appeal to the Board of Revenue; and when he does so go up, his appeal is not and cannot be restricted to the examination of the question whether the dismissal for default was proper or not. The dismissal in default cannot put the assessee in a worse position than if his appeal had been dismissed on merits, in which case he would have had a right of appeal to the Board of Revenue on the merits of his assessment. There is nothing in the Act or the Rules to warrant the inference that when an assessee goes up in second appeal on the dismissal of the first appeal for default, his right is restricted to challenging the dismissal for default only and that he cannot urge any contentions on merits subject to....