TMI Blog1984 (10) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... d proposition of law that no party should suffer on account of the mistake of the court or the Tribunal. That apart, in a situation like this, the doctrine of merger has no application and the High Court was in error in throwing out the Commissioner's appeal by applying the doctrine of merger. Appeal allowed. - C.A. No. 4121 of 1984, S.L.P. No. 4425 of 1984, S.T.R. No. 643 of 1982 - - - Dated:- 15-10-1984 - Judge(s) : D. A. DESAI., RANGANATH MISRA Gopal Subramaniam and R.A. Gupta, for the appellant. A.K. Goel, for the respondent. -------------------------------------------------- Civil Appeal No. 4121 of 1984 arising out of S.L.P. No. 4425 of 1984 from the judgment dated November 23, 1983 of the Allahabad High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding Counsel, on behalf of the Commissioner. Once the Tribunal decided the appeal filed by the assessee and dismissed it, the doctrine of merger applied and the judgment of the Assistant Commissioner (judicial) stood merged in the judgment of the Tribunal. When the appeal filed by the Commissioner was allowed, the Tribunal was interfering in effect with a previous order of the Tribunal itself which was incompetent. I am reinforced in the view I am taking, by a decision of this Court in the case of Jamuna Das Ram Kishan v. Commissioner of Sales Tax [1976] 38 STC 443; 1976 UPTC 497. It is unfortunate that the appeal of the Commissioner cannot be decided on merit. This contingency would have been avoided and should be avoided in futur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section II of the U.P. Sales Tax Act before the High Court at Allahabad. The High Court held: " Once the Tribunal decided the appeal filed by the assessee and dismissed it, the doctrine of merger applied and the judgment of the Assistant Commissioner (judicial) stood merged in the judgment of the Tribunal. When the appeal filed by the Commissioner was allowed, the Tribunal was interfering in effect with a previous order of the Tribunal itself which was incompetent ...... It is unfortunate that the appeal of the Commissioner cannot be decided on merit. This contingency would have been avoided and should be avoided in future by ensuring that when the appeals are filed by the assessee and the Commissioner, they are heard and decided to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and overcome the difficulty arising in the circumstances indicated above, we suggested to the counsel of the parties that both the appeals should be reheard by the Tribunal and counsel for both parties fairly agreed that it should be done. We, accordingly, allow this appeal, set aside the order of the High Court as also, the two separate orders of the Tribunal by consent of the parties and direct that Appeal No. 1366 of 1980, filed by the assessee and Appeal No. 541 of 1981, filed by the Commissioner relating to the year 1978-79 shall be reheard. The Tribunal shall hear both the appeals on the same day and dispose them of by a common judgment to avoid any further difficulty. There shall be no order as to costs. - - TaxTMI - TMITax - C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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