1986 (12) TMI 341

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.... Commissioner (Judicial), who upheld the rejection of the account books of the assessee but reduced the quantum of turnover. Against this order, both the Commissioner of Sales Tax as well as the assessee filed second appeals before the Sales Tax Tribunal. The appeal preferred by the assessee was decided earlier by the Tribunal. The main contest in the appeal preferred by the assessee before the Tribunal was as to whether the account books of the assessee were liable to be rejected. The said appeal was duly contested by the Commissioner of Sales Tax before the Tribunal. After hearing the parties, the Tribunal for the reasons stated by it in its impugned order allowed the appeal of the assessee and held that the account books of the assessee ....

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....reme Court was concerned in that case with the controversy as to whether under the situation of that case the doctrine of merger was applicable and the view taken by the Supreme Court was that the said doctrine of merger was not applicable as both the assessee and the Commissioner of Sales Tax had a statutory right of appeal before the Tribunal against the decision of the Assistant Commissioner (Judicial) and in the exercise of that right two separate appeals had been filed. Towards the last of the paragraph 3 of its judgment aforesaid the Supreme Court has clearly mentioned that the doctrine of merger is not applicable when both the parties have filed appeals before the Tribunal against the order of the Assistant Commissioner (Judicial) pa....

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.... the Supreme Court has been considered and distinguished on the same reasoning as I have already indicated above. I see no reason as to why a different view than the view taken in the case of Commissioner of Sales Tax v. Ganesh Flour Mills Co. Ltd. [1987] 66 STC 399 (All.); 1986 UPTC 291 be taken. That apart, the matter can be examined from another angle. Let us assume for a moment that even if both the appeals one filed by the assessee and the other filed by the department, were to be heard together by the Tribunal and after hearing both the parties the Tribunal came to the conclusion that the account books of the assessee are to be accepted and in consequence thereof the appeal of the assessee had to be allowed, in such a situation, in....