TaxTMI 
TaxTMI 
TaxTMI 
1995 (10) TMI 209
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....n the basis of the inspection made by the Enforcement Officials which revealed certain defects. Hence he issued a pre-assessment notice proposing to reject the books and the returns filed by the petitioner and to determine the taxable and total turnover to the best of his judgment. 3.. The petitioner filed its objections dated January 10, 1990 explaining its case, and contended that the incorrect arrival of the variations in the stocks at the time of inspection, in the absence of any purchase or sales omissions, should not be taken to the advantage of the second respondent to clutch upon the jurisdiction of best judgment assessment. The second respondent did not accept the objections of the petitioner and confirmed the proposal by making a best judgment assessment, and by the very same order he imposed heavy penalty under section 12(3) of the Act. 4.. The petitioner, aggrieved by the said order of the second respondent dated February 14, 1990, preferred a statutory appeal before the first respondent in Appeal No. 7 of 1991. Before the first respondent, the petitioner appointed a sales tax practitioner for representing it. The first respondent fixed the date of hearing and intimat....
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....etitioner was not present before the first respondent in spite of sufficient opportunity and final notice given, the impugned order was passed ex parte dismissing the appeal for default. Such an order could be passed under section 31(3)(iii) of the Act. The said order was communicated to the authorised representative by the registered post, acknowledgment due which was received by him on April 11, 1994. Subsequently on April 27, 1994 the petitioner through its accountant by name K. Hariharan sent a letter stating that the copy of order made in appeal A.P. No. 7 of 1991 dated March 17, 1994, was lost while travelling. They requested for a certified copy of the appellate order. They filed a copy application on May 23, 1994. Copy of the order was issued to them on June 1, 1994. Having received the copy of the order the petitioner failed to avail the remedy of second appeal before the Tribunal under section 36 of the Act by filing an appeal within a period of 60 days from the date of service of the order. Finding that they have lost their remedy of second appeal provided under section 36 of the Act, the petitioner has filed this writ petition. According to the respondents the impugned ....
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....ase of an order of assessment- (i) confirm, reduce, enhance or annul the assessment or the penalty or both; (ii) set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed; or (iii) pass such other orders as he may think fit; or (b) in the case of any other order, confirm, cancel or vary such order: Provided that at the hearing of any appeal against an order of the assessing authority, the assessing authority shall have the right to be heard either in person or by a representative." 12.. As can be seen from the above provision in the Act, no specific power is conferred on the appellate authority to dismiss an appeal for default, i.e., for non-appearance of parties. However the learned Government Advocate submitted that such a power is to be taken as available under section 31(3)(a)(iii), that the appellate authority may pass such other order as he may think fit. In the instant case when the first respondent thought that the petitioner did not appear in spite of sufficient opportunity and final notice, it was appropriate to dismiss the appeal for default. Accordingly he has passed the impugned order. 13.....
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....may dispose of an appeal after giving reasonable opportunity of hearing to the appellant. Recording of sufficient reasons in writing in disposing of an appeal is omitted. 16.. As already noticed above, an appeal under section 31 in effect is a continuation of assessment proceedings. The appellate authority could register the assessment and liability. Rule 27(5) states that the appellate authority shall, after giving the appellant reasonable opportunity of being heard, pass such orders on the appeal as such authority thinks fit, subject to the provisions of subsection (3) of section 31 [or sub-section (3) of section 31-A, as the case may be]. Rule 27-A reads thus: "27-A. (1) As soon as may be, after the registration of appeal, the Appellate Assistant Commissioner shall set a date of hearing and shall send an intimation thereof to the Departmental Representative. A copy of the memorandum of appeal and the order appealed from, shall also be furnished to him. It shall be the duty of the Departmental Representative to obtain the records of the case from the assessing authority and transmit them to the Appellate Assistant Commissioner. (2) On the date fixed for hearing or any other da....