TMI Blog1988 (2) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... e same could not be heard on that day. Before the appeal could be finally heard, the appellant, the Orissa Cement Limited, filed an application on 13th November, 1979 stating therein that the appellant does not want to pursue the appeal and accordingly abandons the same. The appellate authority, however, instead of treating the appeal to be withdrawn, passed an order on 22nd April, 1980 rejecting the application for withdrawal and fixing a date of hearing therein. The ground for rejection of withdrawal is the existence of prima facie ground for enhancement of the assessment. This order of the appellate authority has been annexed as annexure 3 and the same is being impugned in the present writ petition. 3.. Mr. Das, the learned counsel for the petitioners, contends that the right to file an appeal inheres in it the right to withdraw the same, particularly when there is no prohibition in the statute. Since the Orissa Sales Tax Act nowhere puts any embargo on withdrawal of an appeal, the appellate authority had no jurisdiction to refuse the prayer for withdrawal merely because he was of the opinion that prima facie ground exists for enhancement of assessment. The learned Standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eject the appeal summarily after giving the appellant such opportunity as it may think fit to rectify the defects. Under sub-rule (2) of rule 49, the appeal can also be summarily rejected on other grounds, but before rejecting the same, the appellant has to be given a reasonable opportunity of being heard. Rule 50 is the provision for hearing of appeal. If the appeal is not summarily rejected under rule 49, then the appellate authority shall fix a day and place for hearing of the appeal and may from time to time adjourn the hearing. Sub-rule (2) of rule 50 authorises the appellate authority to make further enquiry as it thinks fit before disposing of any appeal or to cause further enquiry to be made by the Assistant Sales Tax Officer or the Sales Tax Officer, as the case may be. These are all the provisions of the Act and the Rules dealing with an appeal. Then comes the provision for enhancement with which we are directly concerned in the present case. Sub-section (2)(a) of section 23 of the Act authorises the appellate authority to confirm, reduce, enhance or annul the assessment or the penalty or interest, if any. Sub-section (2) may be extracted hereinbelow in extenso for be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate authority was fully justified in rejecting the prayer of the appellant to withdraw the appeal, particularly when the appellate authority was prima facie satisfied about the existence of grounds for enhancement of the assessment. We shall now examine the different decisions cited by the counsel for parties. 6.. In the Gujarat case [1982] 51 STC 115; 1982 Tax LR 3220 (State of Gujarat v. Premier Auto Electricals Ltd.) on which Mr. Das for the petitioners places reliance, the point for consideration was whether a reference made at the instance of the State under section 61(4) of the Bombay Sales Tax Act could be withdrawn before the conclusion of hearing and before any vested right had come into existence in favour of the opponent-assessee. After analysing the provisions of the Bombay Sales Tax Act, more particularly section 61 thereof, the learned Judges of the Gujarat High Court came to the conclusion: "........ It is important to bear in mind, however, that before the obligation to do the things therein prescribed arises, the condition precedent which is required to be satisfied is that there must have been a hearing of the case. It is only upon the hearing of any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the request of the party at whose instance the reference is made that the answer to the question referred need not be recorded as the question is not pressed may not strictly amount to the withdrawal of a reference, there is no reason why the principle underlying those provisions cannot be applied when such party does not press the question of law and requests that it need not be answered....." In Bijayananda Patnaik's case AIR 1963 SC 1566, the Supreme Court was considering the power of the High Court under section 116-A(2) of the Representation of the People Act while hearing an appeal from an election petition and whether the appellant had the right of withdrawing an appeal filed against the order of the Election Tribunal or not. After examining the provisions contained in section 116-A of the Representation of the People Act, which is the appellate power of the High Court, the Supreme Court held that the High Court has the same powers, jurisdiction and authority and has to follow the same procedure in the matter of withdrawal of an appeal under section 116-A, as in the matter of an appeal from an original decree before it and there is no warrant for importing any limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal, the application for enhancement also came to be disposed of without even being considered. In our opinion, that application could not be dealt with in this manner........" The aforesaid conclusion was reached substantially because of a provision like section 38(5) of the Madhya Pradesh General Sales Tax Act under which the State Government had filed an application for enhancement of the assessment. Such a provision is absent in the Orissa Sales Tax Act. That apart, it may be noted that in paragraph 4 of the judgment, it has been clearly stated that "the learned counsel for the assessee also fairly concedes that this is so". Thus it was a decision on concession. The ratio of the aforesaid decision cannot have any application to the facts of the present case in view of the analysis of the Orissa Sales Tax Act made by us earlier. The other English decision on which the learned Standing Counsel for the department also places reliance is also not applicable to the present case. In the said English case [1935] All ER 808 (R. v. Income-tax Special Commissioners), the provisions of the Income-tax Act, 1918, came up for consideration. After analysing the different provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he withdraws from the appeal, or rather that he withdraws the notice of appeal, and that there is no appeal pending at all. It seems to me that the code contained in these sections is quite inconsistent with any such argument........" The decision of the aforesaid case will have absolutely no application to the facts of the present case since under the Orissa Sales Tax Act, the provisions are not in Pari materia with the provisions of the Income-tax Act, 1918, which their Lordships were considering in the Special Commissioner's case [1935] All ER 808. Under the Income-tax Act, 1918, once the procedure laid down in Part VII of the Act was brought into being, the tax-payer had no further power of preventing it from being carried out to its full effect. But that is not the position so far as the Orissa Sales Tax Act is concerned with which we are concerned in the present case. In our opinion, the aforesaid English decision will have no application to the present case. 8.. Under the Orissa Sales Tax Act, an assessee being aggrieved by an order of assessment can prefer an appeal under section 23(2) of the Act and there is no embargo either under the Act or the Rules made thereunder ..... X X X X Extracts X X X X X X X X Extracts X X X X
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