TMI Blog2004 (5) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... ring of the appeal itself. The assessment years involved in these revisions are 1984-85, 1985-86 and 1986-87. The applicant is a partnership firm and carried on the business of manufacturing and selling the bricks. The assessing officer rejected the account books of the dealer and framed the best judgment assessment orders in all these years. Aggrieved against the aforesaid assessment orders the dealer filed appeals under section 9 of the U.P. Sales Tax Act, 1948 challenging the assessment orders. During the pendency of the appeals the dealer filed an application for permission to withdraw the appeals and not to press the appeals. The said application was opposed by the departmental representative on the ground that presumably it is a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the appellate authority from dismissing the appeal at any stage with such observations as it deems fit, where the appellant applies for withdrawal of the same and no request for enhancement of the assessment or penalty has been made." 4.. Before examining the rival submissions it would be appropriate to notice the statutory provisions regarding the appeal under the U.P. Sales Tax Act, 1948 (hereinafter to referred to as "the Act"). The section 9 of the Act gives statutory right to file appeal to any dealer or other person aggrieved by an order made by the assessing authority, other than an order mentioned in section 10-A or subsection (6) of section 13-A of the Act. Section 2(a-1) of the Act defines the appellate authority means the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng section 10-B, sections 21 and 22 of the Act. 5.. It has also been judicially held by this Court that power of an appellate authority under section 9 is co-extensive with the power of the assessing authority. To put it differently the appellate authority has power to enhance the assessment or penalty as the case may be. In this respect the power of the appellate authority is not confined to the subject-matter of the appeal. The appellate authority has power to enhance assessment while disposing off appeal. 6.. Now question arises in view of this statutory set up whether the right of the assessee to prefer the appeal and to withdraw the appeal at any time before its hearing is taken away by the power of the appellate authority to enhan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Secondly, there should have been request for enhancement of the assessment. Even under the proviso the appellate authority has not been given jurisdiction to allow the appeal when there was already an application to withdraw the appeal by the appellant. In any view of the matter the order allowing the appeal against the wishes of the appellant cannot be sustained even by invoking the said proviso. 8.. At this stage it is appropriate to consider as to whether de hors rule or there is any rule of law or practice which may prevent an appellant not to decide the suit, appeal, etc., instituted by him. The Supreme Court has examined the matter in connection with the hearing of an appeal under the Representation of Peoples Act which arose from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate court. The appellant or the plaintiff being the dominus litis is entitled to withdraw the suit unless withdrawal has the result of defeating a vested right which has come into existence in favour of the defendant before the prayer for withdrawal is made. If any such right has come into existence, the court is not bound to allow withdrawal. 10.. A division Bench of the Gujarat High Court has examined this issue under the Bombay Sales Tax Act as applicable to the State of Gujarat in connection to a question, when can a High Court decline to answer question, at the instance of applicant not pressing the answer for question, in the case of State of Gujarat v. Premier Auto Electricals Ltd. [1982] 51 STC 115. It has come to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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