B.N. Sapru, J.
1. This is a revision by the assessee. The assessee's accounts version was rejected and the turnover of the assessee was determined at Rs. 20 lakhs by the Sales Tax Officer. The assessee appealed. The A.C.J. while upholding the rejection of the accounts determined the assessee's turnover at 19 lakhs. The assessee as well as the Commissioner, Sales Tax, were aggrieved by the decision of the A.C.J. and both of them appealed to the Sales Tax Tribunal. The Commissioner, Sales Tax, in his appeal prayed that the order of the A.C.J. be set aside and the turnover determined by the assessing authority be accepted while the assessee prayed that his account books be accepted and the disclosed turnover be also accepted.
2. It transpired that at the hearing of the appeal the counsel for the Commissioner, Sales Tax, pointed out that according to the assessee his opening stock and closing stock were almost the same and that his turnover was Rs. 17,28,449 though he had imported goods from outside the State to the tune of Rs. 25,00,000. No such grounds have been taken in the memorandum of revision or before the assessing authority or even before the A.C.J. The Tribunal was of the opinion that the matter should be decided afresh by the assessing authority and has allowed both the appeals and directed that a fresh assessment be made. It is in this situation that the assessee has come in revision.
3. The assessee's contention is that he had statutory right of appeal to the Tribunal and the Tribunal was bound in law to decide whether the rejection of the assessee's books of account was justified or not. It is further submitted that the question of quantum of turnover would only arise if it is found that the assessee's account books were rightly rejected. The Tribunal has not decided the question as to whether the assessee's accounts were rightly rejected or not.
4. The learned standing counsel argues that the assessee's appeal has been allowed and he will have a fresh opportunity before the Sales Tax Officer to show that his accounts should be accepted. He further submits that no prejudice is caused to the assessee by the order of the Tribunal.
5. The assessee was entitled as a matter of law to a decision of his appeal on merits. There has been no decision of the assessee's appeal on merits. The Tribunal has really allowed the appeal of the assessee because it was allowing the appeal of the department who wanted a fresh determination of the turnover instead of upholding the initial order of the Sales Tax Officer which was actually prayed for in the memorandum of revision.
6. The Tribunal was bound in law to decide the assessee's appeal on merits. It has failed to do so. In this situation, there is no option but to allow this revision, set aside the impugned order of the Tribunal and direct the Tribunal to decide both the appeals of the assessee and the Commissioner afresh on merits. The assessee is entitled to his costs which I assess at Rs. 200.