1998 (9) TMI 668

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....ve heard Sri S.O.P. Agarwal, learned counsel for the revisionist and Sri R.D. Gupta, learned standing counsel appearing on behalf of respondent. 3. The proceedings relates to the assessment year 1982-83. The order of assessment was made on 12.4.1985. The dealer revisionist preferred an appeal to the Assistant Commissioner (Judicial) Trade Tax. The appeal was allowed by an order dated 20.7.1985 and setting aside the assessment order the matter was remanded to the assessing officer. In pursuance of the remand order, the assessing officer made a fresh assessment on 19th October, 1985, which is said to have been communicated to the dealer on 18.11.1985. 4. On 24.10.1985, the dealer preferred a second appeal being Second Appeal No. 598 of 1985....

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....r : "8. The assessee filed an appeal against the order of the Assistant Commissioner (Judicial) before the Tribunal. Consequent upon the order of remand passed by Assistant Commissioner (Judicial), the Sales Tax Officer made an assessment order under Section 21 of the Sales Tax Act during the pendency of the appeal before the Tribunal. It is urged that in view of an order having been made under Section 21, the appeal of the assessee before the Tribunal became infructuous. 9. The order of remand itself was challenged in the appeal. Any order passed by the Sales Tax Officer in pursuance of the order of remand passed by the Assistant Commissioner (Judicial) could only survive if the remand order survives. In other words, if the appeal ....

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....very force of the Tribunal's order dated 29th June. 1987 and this would be the result even if no appeal was filed against the second assessment order or the first appellate order. 8. A similar controversy had arisen before Hon. Supreme Court in Gurdwara Prabandhak Committee v. Shiv Ratan Dev, AIR 1955 SC 576, in that case High Court had remanded the case to the trial court for proceeding in accordance with law and between the date of application for leave to appeal to Hon'ble Supreme Court from the order of the High Court and the date on which leave was granted the trial court passed the decree. The question was whether the subsequent decree by the trial court would affect the appeal before Hon'ble Supreme Court. Hon'ble Su....

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....he notice of the Tribunal while the first second appeal, i.e., Second Appeal No. 598 of 1985 was pending, that assessment has already been made in compliance with the order of remand and even the first appeal had been dismissed and that if it was so done, the fate of that second appeal would have been different. This is a wrong, approach. The department is equally a party to the proceeding and could have brought the said facts to the notice of the Tribunal. Even if such facts were brought to the notice of the Tribunal at that time, that did not mean that the dealer's appeal would have been dismissed. The validity of the order of remand depended on its own facts and validity cannot be lent to it by the subsequent order of assessment or t....