Parkas Krishna, J. - (1.) These six revisions at the instance of the dealer were heard together and are being disposed of by this judgment. Identical question of law and fact are involved.
(2.) A short question for consideration in these revisions is whether the appellate authority as defined under the U.P. Sales Tax Act, 1948 is entitled to allow the appeal filed under Section 9 of the Act and remand the matter to the assessing authority for fresh consideration notwithstanding the fact that an application to withdraw the appeal was filed by the dealer before the hearing of the appeal itself. The assessment years involved in these revisions are 1984-85, 1985-86 and 1986-87. The applicant is a partnership firm and carried on the business of manufacturing and selling the bricks. The assessing officer rejected the account books of the dealer and framed the best judgment assessment orders in all these years. Aggrieved against the aforesaid assessment orders the dealer filed appeals under Section 9 of the U.P. Sales Tax Act, 1948 challenging the assessment orders. During the pendency of the appeals the dealer filed an application for permission to withdraw the appeals and not to press the appeals. The said application was opposed by the departmental representative on the ground that presumably it is a case of under-assessment and therefore requisite enquiry is needed which is still pending. He prayed that all the appeals be heard and decided on merits for these assessment years. The appellate authority observed in its order that the assessing authority has not properly recorded its finding on the question of firing period, production of bricks and average selling rate of bricks, and there is substance in the argument of the departmental representative that there is possibility of under-assessment and therefore the matter should be remanded to the assessing authority for reframing of the assessment order after properly examining the aforesaid issues. In this view of the matter the appellate authority in spite of the fact that the applications for withdrawal of the appeals were filed before it allowed all the appeals and set aside the assessment orders and remanded the matter to the assessing authority for framing fresh assessment orders. This order of the first appellate authority has been confirmed in the appeals by the Tribunal by the order under revision.
(3.) The learned counsel for the applicant argued that the right to file an appeal inheres in it the right to withdraw the same, until and unless there is any prohibition in the statute. The learned Standing Counsel in reply has placed reliance in this connection to the proviso to Section 9(3)(b) of the U.P. Sales Tax Act, 1948. The said proviso reads as follows : "Provided that nothing in this Sub-section shall preclude the appellate authority from dismissing the appeal at any stage with such observations as it deems fit, where the appellant applies for withdrawal of the same and no request for enhancement of the assessment or penalty has been made.";