Appellate Court has jurisdiction to pass any order except order of dismissal of appeal for default.

SHIVARAJ PATIL, J.

The petitioner has sought for a writ of certiorarified mandamus to call for the records of the first respondent in his proceedings A.P. No. 7 of 1991 and quash the order dated March 17, 1994 as illegal and void, and further to direct the first respondent to re-hear the appeal in accordance with the provisions of the Act after granting one more opportunity to the petitioner.

2. Briefly stated, the facts giving rise to this writ petition are as under :

The petitioner is a registered dealer under the provisions of the Tamil Nadu General Sales Tax Act, 1959, hereinafter referred to as "the Act". The petitioner is an assessee and is engaged in the manufacture of M.S. rounds. It is purchasing raw materials in the form of scraps and converts them into M.S. rounds. The second respondent based on an inspection dated September 30, 1989, proposed to reject the reported turnover on the basis of the inspection made by the Enforcement Officials which revealed certain defects. Hence he issued a pre-assessment notice proposing to reject the books and the returns filed by the petitioner and to determine the taxable and total turnover to the best of his judgment.

3. The petitioner filed its objections dated January 10, 1990 explaining its case, and contended that the incorrect arrival of the variations in the stocks at the time of inspection, in the absence of any purchase or sales omissions, should not be taken to the advantage of the second respondent to clutch upon the jurisdiction of best judgment assessment. The second respondent did not accept the objections of the petitioner and confirmed the proposal by making a best judgment assessment, and by the very same order he imposed heavy penalty under section12(3) of the Act.

4. The petitioner, aggrieved by the said order of the second respondent dated February 14, 1990, preferred a statutory appeal before the first respondent in Appeal No. 7 of 1991. Before the first respondent, the petitioner appointed a sales tax practitioner for representing it. The first respondent fixed the date of hearing and intimated it to the petitioner through the authorised representative. The appeal was posted on various dates. When there was no representation on behalf of the petitioner the appeal was dismissed for default by the first respondent ex parte on March 17, 1994. It is that order, the validity and correctness of which, is questioned in this writ petition. The petitioner has pleaded several circumstances as to how the representative of the petitioner did not inform it and so also as to how its clerk who was entrusted with the work of taking copy of the impugned order did not follow the same properly and ultimately he died. Thus the petitioner could not file further appeal within the time prescribed for such appeal.

5. Under the circumstances, this writ petition is filed contending that, -

(i) the first respondent could not dismiss the appeal by passing an ex parte order contrary to the provisions of section31 of the Act;

(ii) the first respondent acting as a quasi-judicial authority, exercising power under section31 of the Act was obliged to effectively evaluate the grounds raised in the appeal and decide them on merits instead of passing an ex parte order of dismissal of appeal for default for non-appearance;

(iii) the action of the first respondent in denying the rightful opportunity to the petitioner and the non-consideration of the grounds of appeal which were before him is contrary to the well-settled principles of law; and(iv) the petitioner seeks the leave of this Court for an opportunity to canvass the grounds of appeal already filed before the first respondent. It is only because of certain events which prevented the petitioner from challenging the dismissal order before the next higher appellate authority, and in the absence of adequate remedy, left with no other alternative he is before this Court for necessary relief.

6. The respondents have filed counter-affidavit meeti