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TMI Blog1970 (10) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ashing the orders of the Presiding Officer, Sales Tax Tribunal, Punjab, respondent No. 2, dated 8th April, 1968, and 6th August, 1968 (copies annexures 'A' and 'B' respectively). Briefly the facts of this petition may be stated thus: Karnail Singh, through whom this petition has been filed, along with Lal Singh, Mohanlal and Harbans Singh, formed a partnership in the name and style of Messrs Wood Workers and Packing Case Works, Moga, on the 7th June, 1963, for the purpose of carrying out the contract which they had entered with Messrs Food Specialities, Moga. The firm was to supply 800 wooden pallets and it was agreed that the firm Messrs Food Specialities would pay Rs. 43 per pallet. The terms of the payment were that Rs. 5,000 would be paid after delivery of first hundred pallets, Rs. 5,000 after delivery of 200 pallets and the balance on completion of the order. It is further stated that on the second supply, the Assessing Authority, Ferozepore, issued a notice to the petitioners that they were supplying and selling goods without obtaining the registration number under the Punjab General Sales Tax Act, 1948 (hereinafter referred to as the Act) and that no return whatsoever had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is manner that this petition has come up for hearing before us. The only question that falls for determination in this petition is whether section 20 of the Act contemplates any order of dismissal in default or it necessarily requires that the appellate authority is bound to dispose of every appeal once it is filed, on merits. It was contended by Mr. R.N. Narula, learned counsel for the petitioners that the appellate authority has no power to dismiss an appeal in default and rule 59(2) in so far as it empowers the appellate authority to dismiss an appeal in default is repugnant to section 20(6) of the Act and that, in spite of the non-appearance of the appellant or its counsel on the date of hearing of the appeal, the appellate authority is duty bound to dispose of the appeal on merits. Support was sought by the learned counsel from the words "pass such order on appeal as it deems to be just and proper" occurring in sub-section (6) of section 20. After giving our thoughtful consideration to the entire matter, we are of the view that there is considerable force in the contention of the learned counsel for the petitioners. At this stage, it would be appropriate to notice the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised subject to such conditions and in respect of such area as may be specified in the notification. (3) A Tribunal, on application made to it against an order of the Commissioner under sub-section (1) within ninety days from the date of communication of the order, may call for and examine the record of any such case and pass such orders thereon as it thinks just and proper. (4) No order shall be passed under this section which adversely affects any person unless such person has been given a reasonable opportunity of being heard." "Section 22. (1) Within 60 days from the passing of an order under section 20 or 21 by the Tribunal affecting any liability of any dealer to pay tax under this Act, such dealer or the Commissioner may, by application in writing accompanied by a fee of one hundred rupees in case the application is made by a dealer, require the Tribunal to refer to the High Court any question of law arising out of such order. (2) If for reasons to be recorded in writing, the Tribunal refuses to make such reference, the applicant may within 30 days of such refusal either- (a) withdraw his application (and if he does so, the fee paid shall be refunded); or (b) ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with certain statutory duties under the Act and, in discharge of these duties, even to act suo motu and revise the assessment. The authorities under the Act are required to see that the assessees are not burdened with an amount of tax not envisaged by the Act or on the facts of the case. They are also enjoined to see that the tax legally leviable under the Act does not escape assessment by any erroneous order of the subordinate authorities. It is with this background that we have to judge the correctness of the contention raised before us by the learned counsel for the petitioners. The vires of rule 59(2) depends upon the true scope of sub-section (6) of section 20 of the Act. The expression "pass such order on appeal as it deems to be just and proper" clearly implies that the decision has to be given on merits. An order dismissing an appeal in default can by no stretch of imagination be considered to be either just or proper or having been passed on appeal. The words "on appeal" clearly indicate that the Tribunal has to give a decision on the points raised in the appeal. It is clear to our mind that an order passed on appeal can be deemed to be just and proper only when the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, which has otherwise been properly filed, for default, without making any order thereon in accordance with section 33(4). The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income-tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of section 66. So far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under section 33(4). It follows from all this that the Appellate Tribunal is bound to give a proper decision on questions of fact as well as law which can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant." The view we have taken is also in accord with the view taken by the High Court of Andhra Pradesh in Oversea Mica Exports, Gudur v. Secretary, Sales Tax Appellate Tribunal, A.P., H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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