TMI Blog2015 (10) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in "Balaji Steel ReRolling Mills" (supra) can have no application. That was a case where the Hon'ble 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w mandates in terms of Section 55(7)(a) to (c) powers of confirmation, reduction, enhancement and annulment of the assessment 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 the first Appellate Authority for want of prosecution and that has caused serious prejudice. 3. To establish the prejudice caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 record and to support the grounds in the appeal, the appeal has been rightly dismissed. There is, therefore, a merger now and in the light thereof the order based on mixed question of law and fact does not call for any interference in writ jurisdiction. The judgments relied upon have no application and the petition be dismissed. 7. Today the matter was placed for passing final order and af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95, 1996 and 1997. The Assessing Officer, therefore, wondered that if the record was destroyed in the flood, then, how come these documents were produced, where the books of accounts were kept and whether they are at all destroyed. The explanation in that regard has been considered extensively on page 30 and 31 and the Assessing Officer noted that the administrative office of the petitioner is in Navi Mumbai. As far as Navi Mumbai is concerned and particularly in Turbhe area, there was not such damage in July,2005 floods, as would have enable the petitioner to raise a plea of this nature, is the conclusion reached. It is, therefore, clear that the observations at page 31 cannot be seen in isolation but based on what was the request made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the petitioner appellant has not submitted any proof of destruction of books in the flood of 2005. It is not as if that flood of 2005 is a disputed fact, but what is destroyed therein and which record belonging to the dealer or which file, is the real issue. That has not been spelt out and that is why the explanation was not found to be acceptable. If it was 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othing is produced showing that the Petitioner has informed the necessary authorities about loss or destruction of the books 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 not enough to stop the assessment or block the assessment proceedings, is also the conclusion reached. The plea of remand of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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