9911796707
TMI Blog1984 (12) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, required by the Commissioner (Appeals) vide his letter dated 13-10-1982 to show cause why the appeal be not rejected as barred by limitation. This letter was received by the assessee on 14-10-1982. On 18-10-1982 the date fixed for hearing, an application was moved on behalf of the assessee for adjournment on the ground that the senior counsel's younger brother expired day before yesterday and so he was not in a position to conduct the case. On 19-11-1982 to which date the case was adjourned, on behalf of the assessee an adjournment was again sought on the ground that the managing partner of the firm was out of station and that he had kept all the documents in his custody so that it was not possible to produce anything before the low ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority which resulted in dismissal of the appeal as time barred. He further submitted before us that even if the order of the Commissioner (Appeals) refusing to condone the delay is not set aside, the appeal should be heard on merit by the Tribunal. In support of this contention, reliance has been placed on the decision of the Supreme Court in Mela Ram Sons v. CST [1956] 29 ITR 607, and the decisions of the Orissa High Court in CIT v. Ramakaran Agarwalla [1962] 13 STC 407, CST v. Aurobindo Auto Service [1963] 14 STC 46 and Purshottamdas Mathuradas Co. (P.) Ltd. v. CST [1969] 23 STC 319 (MP). 5. The learned departmental representative has, on the other hand, fully supported the order of the lower appellate authority and submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition moved on 19-11-1982 did not disclose as to why the managing partner chose to remain out of the State on 19-11-1982. We are, therefore, satisfied that there was no sufficient ground for seeking adjournment on 19-11-1982 and the Commissioner (Appeals) was perfectly justified in refusing adjournment. The assessee did not move any application for condonation of delay even though it received a show-cause notice. Under these circumstances, we are of the opinion that the Commissioner (Appeals) was fully justified in holding that there was no sufficient cause for the delay in filing the appeal before him. So, the appeal was rightly dismissed in limine as time barred. 7. The other contention raised on behalf of the assessee that we shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of the Tribunal to enter into the merit of the assessment while sitting in judgment over the order of the first appellate authority. It was held by their Lordships of the Orissa High Court that once the second appeal lies before the Tribunal, that authority has full power to enter into the facts and law as authorised by clause (c) of sub-section (3) of section 23 of the Orissa Sales Tax Act. From the facts stated in this case it cannot be gathered whether the Sales Tax Tribunal set aside the order of the first appellate authority dismissing the appeal summarily for the assessee's failure to remove defects within a reasonable time. In case, the order of the first appellate authority on the point was set aside, in that event it was certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issing the appeal in limine, as time barred. We are clearly of the view that the assessee, in view of the facts of the case, can only assail the order of the Commissioner (Appeals) in second appeal ; and it is not open to it to assail the assessment on merit because we have not set aside the order of the Commissioner (Appeals) on the preliminary ground. Once the said order stands confirmed the question of going into the merits of the assessment does not arise. By not filing the appeal within time, the assessee lost its right to challenge the assessment on merit either before the Commissioner (Appeals) or in second appeal before the Tribunal, even though the appeal filed before the Tribunal is competent and is within time. 12. Under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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