TMI Blog2015 (11) TMI 1634X X X X Extracts X X X X X X X X Extracts X X X X ..... ough called for it was not proper on the part of learned second appellate authority to proceed with the second appeal. It would have been appropriate for the learned Tribunal to insist upon the production of the L. C. R. and then proceed to dispose of the case on merit after going through the L. C. R. In such circumstances the order of remand is not sustainable. The Sales Tax Tribunal being the apex body on the commercial tax matter and manned with equal number of Judicial Member, one will expect that the procedure of law as prevalent in judicial course is maintained to the extent possible, even if it is a quasi-judicial Tribunal. No appellate court ought to dispose the appeal without going through the L. C. R. So the Tribunal ought not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tax and ₹ 29,269.94 towards penalty. The total due including tax and penalty comes to ₹ 43,540.41. Besides the amount of ₹ 1,11,424 claimed by the dealer towards ITC is disallowed which is added to the above due. Against the order of the learned assessing officer the petitioner preferred appeal before the learned Joint Commissioner of Sales Tax. The first appellate authority observed that the learned assessing officer committed error as the audit report does not reflect any stock discrepancy. He further held that the order of assessment has been passed without documentary evidence adduced for which, it cannot be sustainable in the eye of law. So he found the order of assessment was wrong. He observed that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority has committed error by observing that the impugned order does not reveal that the first appellate authority has verified the books of account of the dealer and by passing a non-speaking order. It is also stated that the learned second appellate authority has erred in law by remanding the case, when all the materials were available before it for its consideration in the second appeal. On the whole it is submitted to allow the revision by setting aside the order of the Tribunal. The learned counsel for the Revenue opposing the submission of the learned counsel for the petitioner, submitted that the assessment order was correct and the first appellate authority had failed to appreciate the facts of the case. He further su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner for production of necessary documents. He observed that when the books of account were not produced by the petitioner obviously there could be no examination of the books of account by the assessing officer. He observed that, order of assessment was passed without any documentary evidence and without justification for which the same was set aside by allowing the appeal. It is revealed from the impugned order preferred against the order of the first appellate authority, that the learned Tribunal has observed that no notice under section 42 of the OVAT Act was issued before taking up the assessment. At the same time it has been observed in the impugned order that the first appellate authority has verified the books of account and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitution of Tribunal having Judicial Member requires judicial propriety is to be maintained. The second appellate forum being the final court of facts ought to call for the lower court records and dispose of the matter, so that justice is not only done but also appears to be done. It should not be forgotten that the Sales Tax Tribunal being the apex body on the commercial tax matter and manned with equal number of Judicial Member, one will expect that the procedure of law as prevalent in judicial course is maintained to the extent possible, even if it is a quasi-judicial Tribunal. No appellate court ought to dispose the appeal without going through the L. C. R. So the Tribunal ought not to proceed to dispose without L. C. R. being avai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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