TaxTMI 
TaxTMI 
1988 (12) TMI 327
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....ock register. On the second survey, an exercise book was found containing 39 written pages, which contained entries relating to assessee's business for the assessment years 1974-75 and 1975-76. The assessment for the year in question was made on best judgment. Against a disclosed taxable sales of oil of Rs. 10,563.50 and taxable turnover of khal of Rs. 2,901.86 the assessing authority completed the assessment on a combined turnover of Rs. 18,500 of sales of oil and khal, and on the turnover of Rs. 10,000 of first purchase of oil-seeds. It may be noted that the assessee had not admitted any tax liability on the purchases of oil-seeds. Being aggrieved by the assessment order, the assessee went up in appeal before the Assistant Commissioner (judicial), Sales Tax. The first appellate authority set aside the assessment with the direction to make the assessment afresh after further investigation. A second appeal against the order of remand at the instance of the assessee was dismissed by the Sales Tax Tribunal. Being still aggrieved, the assessee has now come up in this revision. From the orders passed by the appellate authorities it is evident that during the hearing of appeal ....
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....ned and discussed in the order of the assessing authority and those documents showed excess suppression, than that determined by the Sales Tax Officer, then either the learned Assistant Commissioner (Judicial), could consider those facts himself and enhance the turnover and tax assessed upon the appellant on that basis, or if in the interest of justice, he thought it fit to give an opportunity to the appellant to explain various entries therein before the assessing authority so that he may get a fair justice, then the same also cannot be held to be unjustified." The Tribunal also held that the remand in this case had not been made on whim or humour but was judicially sound. Section 9 of the Act sets out the powers of the Assistant Commissioner (Judicial), Sales Tax, while disposing of an appeal. A consideration of clause (a) of sub-section (3) of section 9 would show that jurisdiction of the appellate authority includes the power to confirm, reduce, enhance or annul the assessment whether such reduction or enhancement arises from a point raised in the grounds of appeal or otherwise. The appellate authority has also the power to set aside the assessment and direct the assessin....
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....ustified in sustaining the order of remand passed by the Assistant Commissioner (Judicial) directing the Sales Tax Officer to pass a fresh assessment order after further investigation and inquiry. From the assessment order it is clear that the assessing officer has nowhere discussed the outcome of the material seized during the two surveys. Except for a mention that an exercise book was recovered containing 39 pages which contained business transactions for the years 1974-75 and 1975-76, no attempt was made to process the entries contained in that exercise book. There is nothing to suggest that the assessing authority had even attempted to find out the nature and value of the transactions contained therein, nor there is any finding in the assessment order to the effect that the assessee had been able to explain those documents to the satisfaction of the assessing officer. Even the entries and transactions pertaining to the two years were not sorted out to find out the transactions related to the year in dispute. In directing the remand of the case for fresh assessment the Assistant Commissioner (Judicial) has referred to this aspect, though not in details. He has further observed t....
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....e that the Assistant Commissioner in exercising his power under section 9 of the Act was competent to examine the case himself or to call for a remand report from the assessing officer, but this by itself is not sufficient to hold that the discretion exercised by the Assistant Commissioner in setting aside the assessment was not warranted in the instant case. It is not a case where all the basic facts for disposal of the matter were already on record. It is a case where the assessing authority had failed to discharge its function of scrutinising the relevant material and the account books before making the assessment. In such a situation, it is not incumbent for the appellate authority to make the investigation itself. Where the appellate authority comes to the conclusion, as in this case, that in the ends of justice the matter should be set aside and remanded to the assessing officer for fresh examination to bring out correct facts, it cannot be held that such a decision of the appellate authority was motivated with irrelevant consideration or the power to set aside the assessment was exercised for an oblique motive with a view to provide a fresh inning to the Revenue. The deci....