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TMI Blog1965 (9) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... hether, in the facts and circumstances of the case, the non-applicant's second appeal No. 205/III/62 should not have been dismissed as not pressed? 2.. The material facts, as they appear from the statement of the case, which are also undisputed, may be shortly stated. The assessee is a registered dealer, who mainly carries on the business of manufacturing and selling bidis. His head office is at Sihora in Jabalpur district and his branch offices are situate at several places in this State and also in Uttar Pradesh. For the period 1950-51 (Diwali year), the Assistant Commissioner of Sales Tax, by his order dated 31st August, 1957, made a best judgment assessment on a gross turnover of Rs. 14 lacs. Being aggrieved by that assessment, the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent the appellate authority from exercising the power of enhancement. It has, therefore, been held that it is not open to an assessee, who has preferred an appeal, to withdraw it so as to prevent the appellate authority from enhancing the assessment. In regard to income-tax, the leading English case is R. v. Income-tax Special Commissioners; Ex parte Elmhirst[1935] All E.R. 808. This was followed in Commissioner of Income-tax, Punjab v. Nawab Shah Nawaz Khan[1938] 6 I.T.R. 370. The principle was adopted and applied in a case under the Central Provinces and Berar Sales Tax Act, 1947, also in Mohanlal Hargovinddas v. State of Madhya Pradesh1962 M.P.L.J. 935. The relevant observations are: "Another limb of the argument put forward to sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is no case at all for prohibition.' The Court of Appeal affirmed this decision. Romer, L.J., stated (at pages 395-396): 'The question that we have to determine in this case is whether, when a taxpayer has served a notice of appeal and so brought into effect the machinery designed by section 133 for the purpose of completing the assessment, he can stop the further working of that machinery either by withdrawing the appeal or by refusing to be present at the hearing of the appeal. If that be right and he can in that way stop the working of the machinery, then, as it appears to me, he is in a position to prevent any final assessment being made upon him at all under the Act. That would be an extraordinary intention to impute to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances so require or justify. This is a public duty imposed on it in the interests of the general body of taxpayers and it cannot neglect or decline to perform that duty only because the assessee, realising that if he pursues his appeal it may be the worse for him, has sought leave to withdraw it. The learned counsel for the assessee also fairly concedes that this is so. 5.. It is, however, urged that this case is governed by the Central Provinces and Berar Sales Tax Act, 1947, as in force in 1950-51 and, since there was, at the material time, no provision for a second appeal against an assessment, the appeal in this case as well as the application for enhancement of assessment must be regarded as incompetent. This question has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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