JUDGMENT
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.”
4. Before examining the rival submissions it would be appropriate to notice the statutory provisions regarding the appeal under the U.P. Sales Tax Act, 1948 (hereinafter to referred to as “the Act”). The Section 9 of the Act gives statutory right to file appeal to any dealer or other person aggrieved by an order made by the assessing authority, other than an order mentioned in Section 10-A or Sub-section (6) of Section 13-A of the Act. Section 2(a-1) of the Act defines the appellate authority means the authority to whom an appeal lies under Section 9 of the Act. The appellate authority may under Sub-section (3) of Section 9 call for examining the relevant record and after giving an opportunity of hearing to the appellant and the Commissioner of Sales Tax confirm or annul the assessment or penalty order or vary such order by reducing or enhancing the amount of assessment or penalty as the case may be. Power to set aside the assessment of the penalty order, etc., has been conferred on the appellate authority. The power to grant stay of realisation of the amount of tax, fee or penalty payable by the appellant till the disposal of the appeal on the fulfilment of the certain terms and conditions are there with the appellate authority. The relevant provision for the purposes of the disposal of the present revisions is the proviso, as quoted above, incorporated in Section 9(3)(b). It may also be noticed here that an appeal can be filed only by a dealer or other person aggrieved by an order made by the assessing authority. It has been judicially interpreted by this Court and has been held that the department or the Commissioner of Trade Tax has no right to file appeal under Section 9 of the Act against an assessment or the penalty order vide Rastriya Coal Traders v. Sales Tax Officer 1985 UPTC 809. If it is a case under-assessment or escaped assessment, power has been given to the department to correct the assessment and realise the tax, fee, or penalty as the case may be, by invoking Section 10-B, Sections 21 and 22 of the Act.
5. It has also been judicially held by this Court that power of an appellate authority under Section 9 is co-extensive with the power of the assessing authority. To put it differently the appellate authority has power to enhance the assessment or penalty as the case may be. In this respect the power of the appellate authority is not confined to the subject-matter of the appeal. The appellate authority has power to enhance assessment while disposing off appeal.
6. Now question arises in view of this statutory set up whether the right of the assessee to prefer the appeal and to withdraw the appeal at any time before its hearing is taken away by the power of the appellate authority to enhance the assessment, etc., specially keeping in view the proviso ?
7. On a plain reading of the proviso it is clear that where the appellant has applied for withdrawal of the appeal and no request for enhancement of assessment or penalty has been made, the appellate authority shall not be precluded from dismissing the appeal at any stage with such observations as it deems fit. This proviso on its own does not empower the appellate authority to allow the appeal and set aside the assessment order when there is an application to withdraw the appeal. At the most the power with certain observations to dismiss the appeal has been given to the appellate authority. The observation while dismissing the appeal, on the application of withdrawal can be made on fulfilment of the condition where there is request for enhancement of assessment or penalty. In the case in hand the appellate authority has not mentioned about the fact that there was any request by the departmental representative for the enhancement of assessment or penalty. The departmental representative as is clear from the appellate order to which the appellate authority agreed that there is likelihood of under-assessment of the case. Meaning thereby there was no positive request for the enhancement of the assessment by the departmental representative. The appellate authority committed two mistakes which are apparent in the light of the proviso in question. Firstly, he could only dismiss the appeal with certain observations. Secondly, there should have been request for enhancement of the assessment. Even under the proviso the appellate authority has not been given jurisdiction to allow the appeal when there was already an application to withdraw the appeal by the appellant. In any view of the matter the order allowing the appeal against the wishes of the appellant cannot be sustained even by invoking the said proviso.
8. At this stage it is appropriate to consider as to whether de hors rule or there is any rule of law or practice which may prevent an appellant not to decide the suit, appeal, etc., instituted by him. The Supreme Court has examined the matter in connection with the hearing of an appeal under the Representation of Peoples Act which arose from an election petition, in the case Bijayananda Patnaik v. Satrughna Sahu AIR 1963 SC 1566. After examining the provisions contained in Section 116A of the Representation of Peoples Act which is the appellate power of the High Court, the apex Court has held that the High Court has the same powers, jurisdiction and authority and has to follow the same procedure in the matter of withdrawal of the appeal under Section 116A, as in the matter of appeal from an original decree before it. There is no warrant for importing limitation in the matter on the analogy of Section 109 or Section 110 of the Representation of Peoples Act which expressly deals only with election petition and not appeals under Section 116A. The Supreme Court after considering the provisions of the Civil Procedure Code relating to the withdrawal came to the conclusion that the High Court exercising the appellate jurisdiction cannot say that it will not permit the appeal to be withdrawn.
9. In another case before the Supreme Court Hulas Rai Baij Nath v. Firm KB. Bass and Co. AIR 1968 SC 111 has held that plaintiff can unconditionally withdraw the suit, provided no vested right has accrued to the defendant, before passing of a decree. Therefore, the principle of law as laid down by the Supreme Court above is that the appellant or the plaintiff as the case may be, can withdraw the suit or appeal unconditionally. The appellant is the master of the appeal and cannot be forced to have a decision on merit by the appellate court. The appellant or the plaintiff being the dominus litis is entitled to withdraw the suit unless withdrawal has the result of defeating a vested right which has come into existence in favour of the defendant before the prayer for withdrawal is made. If any such right has come into existence, the court is not bound to allow withdrawal.
10. A division Bench of the Gujarat High Court has examined this issue under the Bombay Sales Tax Act as applicable to the State of Gujarat in connection to a question, when can a High Court decline to answer question, at the instance of applicant not pressing the answer for question, in the case of State of Gujarat v. Premier Auto Electricals Ltd. [1982] 51 STC 115. It has come to the conclusion that when the party at whose instance the reference is made states that he wishes to withdraw the reference, it means that he does not take any interest in the matter and that, therefore, it is open to the High Court either to accede to the party’s request and decide not to answer the reference or to proceed to answer the reference in spite of such request, subject to the rider, however, that where such request is made before the reference is fully heard and argued, the court will have to accede to the request unless it is manifest that the acceptance of the request would amount to defeating, in some sort, vested right, if any, which has come into existence in favour of the other party.
11. The said question came up directly under consideration before the Orissa High Court in connection with the Orissa Sales Tax Act in the case of Orissa Cement Limited v. State of Orissa [1988] 70 STC 254. The Orissa High Court has held that an appeal can be withdrawn by the appellant. It has not examined the question if any notice has been issued for enhancement by the appellate authority possessing the power to enhance the assessment as this point had not arisen therein. Similar is the position here. In the case in hand application for withdrawal of the appeal was filed by the applicant before the hearing of the appeal. It was not argued by the Standing Counsel before me or by the departmental representative before the appellate authority that notice of enhancement of the assessment has been issued or served on the assessee.
12. Taking into consideration the principles of law discussed above and the proviso into consideration it is crystal clear that the appellate authority exceeded in its jurisdiction to allow the appeal in spite of the application for its unconditional withdrawal by the appellant.
13. In the result the order of the appellate authority as confirmed by the Tribunal cannot be sustained. All the revisions are allowed. The appeals filed by the dealer before the appellate authority stand dismissed as withdrawn.