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TMI Blog2015 (10) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... r.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 precise contention of Mr.Sridharan is that by virtue of Section 55 of the Bombay Sales Tax Act,1959 and the pari materia provision in Maharashtra Value Added Tax Act,2002, so also Rule 61 of the Bombay Sales Tax Rules,1959 and the pari materia Rule in the Maharashtra Value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 jurisdiction by issuing the writ as claimed for. 5. In support of the above contentions, heavy reliance is placed on the judgment of the Hon'ble Supreme Court in the case of "Balaji Steel ReRolling Mills Vs. Commissioner of C.Ex. & Customs, (2014(310) ELT 209 (S.C.)) ". The argument is that this judgment is on all fours and fully applicable. 6. On the other hand Mr.Sharma, learned Counsel appearing on behalf of the Revenue would support the concurrent orders. He would submit that the order is not an order of dismissal of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there and it is conceded, cannot bar the assessment and the orders in that behalf under the Bombay Sales Tax Act,1959. The returns were filed and according to the Authority assessing the returns, the Assessment Order has been made and which must visit the petitioner with some liability and as computed thereunder. In the Assessment Order copy of which is at page 30 of the paper book, an attempt is made to point out that records are lost on account of floods. 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. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as taken inspection of files. We do not go into this issue and now permit any affidavit or explanation being tendered as to whether the inspection taken was indeed complete or not taken at all. What is essentially 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 destroyed in the flood of 2005. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific 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 evidence. The dealer should not be penalised because he could not produce the relevant evidence before the Assessing Officer or First Appellate Authority. The dealer is required to produce evidence to show that he is in custody of the relevant books of accounts. However, the plea is that all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the 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 case "Balaji Steel ReRolling Mills" (supra) would come to the aid or assistance of the petitioner. Once the dismissal of the appeal by the Appellate Authority is not for want of prosecution or for want of attendance but by dealing with the merits of the matter including the claim that there are no records available because of destruction by floods, then, the principle i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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