TMI Blog1988 (7) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment year 1980-81. During that year, the assessee M/s. Duggal Bricks Supply Co., Badli, Saharanpur, was engaged in the manufacture and sale of bricks. The account books of the assessee were rejected by the Sales Tax Officer, on numerous grounds, including the outcome of two surveys dated 14th February, 1981 and 23rd March, 1981, which were carried out during the relevant year at the business premises of the assessee. The assessment for the year in question was ultimately framed on best judgment by the Sales Tax Officer. In doing so, the disclosed operational period, during which the brick-kiln was operated, production of bricks shown by the assessee, and the selling rate on which bricks were sold during the year as recorded in the books, were discarded. In respect of each of the aforesaid points, the Sales Tax Officer framed the assessment according to his own assessment and best judgment. Being aggrieved by the assessment order, the assessee preferred an appeal before the Assistant Commissioner (Judicial), Sales Tax, who set aside the assessment with a direction to the Sales Tax Officer to make the assessment afresh. The reasons for setting aside the assessment, as per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the accounts. As regard the fourth and fifth ground, namely, the average selling rate and determination of turnover, without taking the opening stock into account, it was argued that the selling rate shown by the assessee and the rate applied by the Sales Tax Officer, were already on record and there was no dispute about them, which may have required any further inquiry by the Sales Tax Officer. About the opening stock of bricks also, the same argument was pressed in service. The Sales Tax Tribunal, while dismissing the appeal, has referred to various case laws on the scope of remand and the power of the Assistant Commissioner (Judicial) under section 9 of the U.P. Sales Tax Act, 1948 (hereinafter referred to as "the Act"). The Tribunal took the view that there was no legal bar in the way of the Assistant Commissioner to set aside the assessment, wherever, he chooses to do so. It further observed that in the instant case, by setting aside the assessment, the Assistant Commissioner gave another opportunity to the assessee of explaining its case before the assessing authority, and in this way, the assessing authority will also be in a position to make further inquiries. To put it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority under section 9 of the Act is a judicial authority, exercising judicial powers under the statute. To put it differently, the appellate authority is not empowered to employ its jurisdictional authority on its whims or humour. Whatever direction it gives or order it makes on appeal, must be in consonance with sound judicial principles and in accordance with the accepted doctrine applicable to the judicial authorities. The powers to set aside the assessment with a direction to make it de novo, contemplated under section 9(3)(b), as it then stood [now corresponding to section 9(3)(a)(ii) of the Act] were considered by a Division Bench of this Court in Hind Vastra Bhandar v. Commissioner, Sales Tax [1969] 23 STC 311. Honourable R.S. Pathak, J. (as His Lordship then was), speaking for the Bench, observed as under: "The power to remand a case has been conferred upon the Judge (Appeals) by section 9(3)(b) of the U.P. Sales Tax Act, which empowers the appellate authority to set aside the assessment and direct the assessing authority to pass a fresh order after such enquiry as may be directed'. The statute does not lay down the grounds upon which the appellate authority may remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings recorded by the Assistant Commissioner (Judicial), in sustaining the order of remand? No order of remand by setting aside the assessment was called for, when the Assistant Commissioner (Judicial) observed that the account books of the assessee were liable to be rejected because the same were not produced before the Surveying Officer, on 14th February, 1981, inasmuch as, the account books were in fact, not accepted by the Sales Tax Officer in computing the assessment for the year in dispute. Likewise, production of bricks shown, was also not accepted by the Sales Tax Officer and there is no gain in saying that the production shown was not commensurate with the fuel consumed by the assessee, which required further investigation by the Sales Tax Officer. Against expected production of 5,10,000 bricks (as estimated by the Assistant Commissioner) on the basis of fuel consumed, the Sales Tax Officer had himself estimated the production of bricks at more than 9,50,000 bricks. Similarly, no remand was called for with a view to determine the period of operation during which, the brick-kiln functioned, because the operational period shown by the assessee had already been discarded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over was underestimated or not, was a question capable of decision on the facts already on record by the appellate authority, considering the totality of the circumstances. It is settled law that no order of remand by setting aside the assessment can validly be passed merely to afford another inning to the assessing authority. The observation of the Sales Tax Tribunal that by setting aside the assessment, the assessee will have a better opportunity to explain its case before the Sales Tax Officer, is hardly ground on which the order of setting aside the assessment can be sustained. So far as the question of opportunity to the assessee is concerned, the appellate authority was obliged under the law to afford an adequate opportunity to the assessee for explaining its case before passing any order on the appeal. On a careful consideration of the orders passed by the two appellate authorities, namely, the Assistant Commissioner (Judicial) as well as the Sales Tax Tribunal, I am of the opinion that the appellate authorities have exceeded their jurisdiction in making the order of remand by setting aside the assessment and directing a de novo enquiry by the Sales Tax Officer. For the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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