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2015 (10) TMI 974 - BOMBAY HIGH COURT

2015 (10) TMI 974 - BOMBAY HIGH COURT - TMI - Validity of impugned order - Appeal dismissed for want of prosecution - Held that:- Tribunal was requested to correct its order and on the ground that it causes prejudice. There as well the Tribunal found that despite several opportunities, no evidence could be produced with regard to the destruction of books of accounts in floods and that plea, therefore, is not substantiated. Surely, this is not a case where the judgment of the Supreme Court in the .....

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Supreme Court found that the dismissal for want of prosecution simplicitor and without any adjudication on merits, is a course impermissible and unknown to the appellate power under the Income Tax Act,1961, the Central Excise Act,1944 and which are pari materia provisions. This judgment of the Hon'ble Supreme Court and equally our orders following it, cannot have any application to the facts and circumstances of the present case. It is distinguishable. - Decided against assessee. - Writ Petitio .....

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and Mr.Sharma, learned AGP appearing on behalf of the respondents. The petitioner really presses prayer clause (c) which reads as under: "(c) That in the alternative, this Hon'ble High Court be pleased to issue Writ of Certiorari or any other appropriate Writ, Order or direction and be pleased to call for and examine the records of the First Appeal order and all other relevant records and be pleased to restore the First Appeals (Exhibit "C") for fresh decision." 2. The pr .....

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ment order, setting aside of an order of penalty or interest, and that order could either be confirmed or cancelled or varied so as to enhance or reduce the penalty, and in any other case means the case not covered by clause (a) and (b) of Subsection 7 of Section 55, may pass such orders as the appellate authority may deem just and proper. Thus, this power does not take within its import a power to dismiss an appeal for want of prosecution. In the present case, the appeal has been dismissed by t .....

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to 1998-99 under BST/CST Acts and for the period 2000-01 to 2004-05 under BST Act, was thus made available in January, 2013, but the Tribunal heard the matter on 14.12.2012 whereas the learned Advocate had sought time to take inspection and, thereafter, to address the first Appellate Authority. However, the appeal was dismissed for non prosecution on 28.12.2012. 4. Mr.Sridharan, therefore, would submit that the prejudice caused be corrected by this Court in its plenary and supervisory jurisdicti .....

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er is not an order of dismissal of the appeal for want of prosecution simplicitor. The order assigns reasons was to why the Appellate Authority did not deem it fit and proper to interfere with the assessment order. There is no material on record to arrive at any conclusion and as desired by the petitioner. The argument that the records were lost in the flood of 2005 in Mumbai, is baseless. It is not a dismissal for want of prosecution but dismissal of the appeal on merits. In the absence of reco .....

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e gone into the record once again with his assistance. 8. On the own showing of the petitioner, it is apparent that it is a Limited Company which is a registered dealer under the Bombay Sales Tax Act,1959 and the Central Sales Tax Act,1956. It is manufacturer of pharmaceutical products like formulations and bulk drugs. It faced financial difficulties and, therefore, approached the Board for Industrial and Financial Reconstruction set up under the Sick Industrial Companies (Special Provisions) Ac .....

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s. That issue has been raised by the petitioner. The Assessing Officer noted that the Constituted Attorney of the petitioner contended that the books of accounts are destroyed in the flood in July,2005. He submitted a copy of the affidavit of the current Directors of the petitioner. However, he produced copies of few shipping bills, bank certificates for POB value for the periods 1995, 1996 and 1997. The Assessing Officer, therefore, wondered that if the record was destroyed in the flood, then, .....

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eached. It is, therefore, clear that the observations at page 31 cannot be seen in isolation but based on what was the request made by the petitioner. If the books of accounts were available and indeed some of them could be produced, then, the assessment order indicates that based on the same an assessment can be finalised. It can also be finalised on the basis of gross turnover and sales and determined from the records available with the Assessing Officer. 10. When the appeal was filed against .....

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ly relied upon before us is the fact that the first Appellate Authority dismissed the appeal for non attendance and for non prosecution. However, at a closer look at this order would reveal that it is only in the operative part these two lines or two sentences relied upon are appearing. However, prior thereto there is complete observation and finding that the appellant - petitioner has not produced any books of accounts related to the grounds of appeal. The explanation was that the books were de .....

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as not a bonafide explanation and the matter was not concluded by the First Appellate Authority for want of appearance or for want of prosecution of the appeal but on merits, then, this cannot be said to be an order dismissing the appeal for want of prosecution. The petitioner - appellant has not produced any evidence which can substantiate his claim of destruction of books of accounts. The Assessing Officer, therefore, applied best judgment test in the assessment order and concluded the assessm .....

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n the Memo of Appeal. There was a specific request made to the Tribunal that if the Tribunal feels appropriate that merits of the case be decided in second appeal, the petitioner-appellant prayed for an opportunity of hearing of the appeal on merits. Therefore, we find that paragraph 5 of the Tribunal's order at running page 92 considers the complete explanation. The Tribunal being last fact finding Authority, was of the view that it can permit the appellant-dealer to produce additional evid .....

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oks of accounts. The oral explanation or assertion of the petitioner before the Tribunal about such destruction was held to be insufficient. That is why this explanation was not accepted. Then, a reference was made to the rehabilitation package sanctioned by the Authorities under the Sick Industrial Companies (special provision) Act (SICA). That record also could not be produced and to the satisfaction of the Tribunal. The argument that the reference is pending under the said Act namely SICA is .....

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