R. K. GULATI, J. ( 1 ) THIS sales tax revision is directed against an order passed by the Sales Tax Tribunal, saharanpur Bench, Saharanpur. By the impugned order, the Sales Tax Tribunal has confirmed the order of the Assistant Commissioner (Judicial), Sales Tax, setting aside the assessment order for the assessment year 1980-81, passed against the assessee, to be made de novo by the Sales tax Officer. ( 2 ) IT was argued on behalf of the assessee, that the order passed by the Sales Tax Tribunal as well as the order of the Assistant Commissioner (Judicial) are erroneous in law and on facts, as no case for setting aside the assessment was made out. ( 3 ) I have heard learned counsel for the parties. I find, there is no substance in the above contention. ( 4 ) THE power of the appellate authority to set aside an assessment is not in dispute. The (question for consideration is, whether on facts of the instant case, the exercise of that power by the appellate authority was valid in law. ( 5 ) THE dispute relates to the assessment year 1980-81. During that year, the assessee M/s. Duggal bricks Supply Co. , Badli, Saharanpur, was engaged in the manufacture and sale of bricks. The account books of the assessee were rejected by the Sales Tax Officer, on numerous grounds, including the outcome of two surveys dated 14th February, 1981 and 23rd March, 1981, which were carried out during the relevant year at the business premises of the assessee. ( 6 ) THE assessment for the year in question was ultimately framed on best judgment by the Sales tax Officer. In doing so, the disclosed operational period, during which the brick-kiln was operated, production of bricks shown by the assessee and the selling rate on which bricks were sold during the year as recorded in the books, were discarded. In respect of each of the aforesaid points, the Sales Tax Officer framed the assessment according to his own assessment and best judgment. ( 7 ) BEING aggrieved by the assessment order, the assessee preferred an appeal before the Assistant commissioner (Judicial), Sales Tax, who set aside the assessment with a direction to the Sales tax Officer to make the assessment afresh. ( 7 ) BEING aggrieved by the assessment order, the assessee preferred an appeal before the Assistant commissioner (Judicial), Sales Tax, who set aside the assessment with a direction to the Sales tax Officer to make the assessment afresh. The reasons for setting aside the assessment, as per the appellate order, were that the assessing officer had not investigated the case on certain aspects as detailed in the appellate order. The points which required investigation by the Sales tax Officer, in the opinion of the appellate authority, briefly stated, were as under : (i) On the survey dated 14th February, 1981 loading of bricks in the brick-kiln was found in progress, but the account books were not produced before the Surveying Officer in spite of demand, which warranted rejection of account books in view of a decision of this Court in narendra Kumar Mukesh Kumar v. Commissioner of Sales Tax, U. P. 1985 UPTC 1192. (ii) The period of operation, during which the brick-kiln was operated, shown by the assessee, was as 27th February, 1981 to 22nd March, 1981; whereas, on the survey dated 23rd March, 1981 the brick-kiln was found still operating. (iii) On the basis of fuel consumed (both coal and wood) production of bricks shown by the assessee as 4,20,000 bricks were not liable to be accepted as the production could not have been less than 5,10,000 bricks. (iv) On the basis of cash memos and bills, for which first class, second class and third class bricks were sold, the average selling rate will come to Rs. 236 per thousand bricks, whereas the sales Tax Officer had adopted a selling rate of Rs. 200 per thousand bricks in framing the assessment. (v) In determining the turnover, the opening stock of the bricks was not considered. ( 8 ) WITH the above findings and as noticed earlier, the assessment order was set aside by the appellate authority and the case was remanded to the Sales Tax Officer for fresh assessment to be made, after giving an opportunity to the assessee. ( 9 ) THE second appeal, filed by the assessee against the appellate order, was dismissed by the sales Tax Tribunal by the impugned order, which has given rise to this revision. ( 9 ) THE second appeal, filed by the assessee against the appellate order, was dismissed by the sales Tax Tribunal by the impugned order, which has given rise to this revision. The case of the assessee before the Tribunal was that the first appellate authority has failed to realise that the sales Tax Officer had already rejected the assessees account books as well as production of bricks and the firing period, during which the brick-kiln was operated. Thus, there was no occasion to set aside the assessment on the above grounds requiring the Sales Tax Officer to come to a finding on the same point, after bringing on record further evidence, by making further investigation and examining the accounts. As regard the fourth and fifth ground, namely, the average selling rate and determination of turnover, without taking the opening stock into account, it was argued that the selling rate shown by the assessee and the rate applied by the sales Tax Officer, were already on record and there was no dispute about them, which may have required any further inquiry by the Sales Tax Officer. About the opening stock of bricks also, the same argument was pressed in service. The Sales Tax Tribunal, while dismissing the appeal, has referred to various case laws on the scope of remand and the power of the Assistant commissioner (Judicial) under Section 9 of the U. P. Sales Tax Act, 1948 (hereinafter referred to as "the Act" ). The Tribunal took the view that there was no legal bar in the way of the Assistant commissioner to set aside the assessment, wherever, he chooses to do so. It further observed that in the instant case, by setting aside the assessment, the Assistant Commissioner gave another opportunity to the assessee of explaining its case before the assessing authority and in this way, the assessing authority will also be in a position to make further inquiries. To put it in the words of the Tribunal, it was observed : learned Assistant Commissioner (Judicial) could himself issue a show cause notice on those points to the dealer but in that case the dealer would have been deprived of the opportunity of explaining those points in dispute before the assessing authority who could if so required make spot inquiry or inquiry from other persons also before giving decision on those points. I, therefore, hold that there was nothing wrong in the remand of this case by the learned Assistant commissioner (Judicial) to the assessing authority. ( 10 ) IN fairness to the Tribunal, it may be observed that the aforesaid observations were made by the Tribunal while commenting upon the turnover fixed by the Sales Tax Officer, which according to the first appellate authority, was determined without taking into consideration the opening stock of bricks and which could entail an enhancement in the turnover assessed by the sales Tax Officer. ( 11 ) SECTION 9 (3) of the Act sets out the various powers which can be exercised in an appeal by the Assistant Commissioner (Judicial ). The powers conferred by those provisions are wider than those of the appellate court in the Civil Procedure Code. The competence of the appellate authority under Section 9 of the Act is not restricted to dealing with the subject-matter of appeal. That authority can examine all matters covered by the assessment order and correct the assessment in respect of such matters, even to the prejudice of the assessee. Clauses (i) to (iv) of clause (a) of Sub-section (3) of Section 9 of the Act, inter alia, expressly authorises the appellate authority to make before disposing of an appeal, such further inquiry as it thinks fit. The appellate authority also possesses the power to call for a report from the Sales Tax Officer on the assessment generally, or on certain points within the time specified by the said authority. Needless to add, that a remand can be made to enable the appellate authority to decide whether the judgment exercised by the Sales Tax Officer in determining the quantum of turnover was proper. Clause (ii) of the clauses mentioned above, provides that the appellate authority may vary the assessment order, by reducing or enhancing the amount of assessment whether such reduction or enhancement arises from the point raised, in the grounds of appeal or otherwise. The appellate authority under Section 9 of the Act is a judicial authority, exercising judicial powers under the statute. To put it differently, the appellate authority is not empowered to employ its jurisdictional authority on whims or humour. Whatever direction it gives or order it makes appeal, must be in consonance with sound judicial principles and accordance with the accepted doctrine applicable to the judicial au orities. To put it differently, the appellate authority is not empowered to employ its jurisdictional authority on whims or humour. Whatever direction it gives or order it makes appeal, must be in consonance with sound judicial principles and accordance with the accepted doctrine applicable to the judicial au orities. The powers to set aside the assessment with a direction to make de novo, contemplated under Section 9 (3) (b), as it then stood [now corr ponding to Section 9 (3) (a) (ii) of the Act] were considered by a Divisi Bench of this Court in hind Vastra Bhandar v. Commissioner, Sales [1969] 23 STC 311. Honourable R. S. Pathak, J. (as his Lordship th was), speaking for the Bench, observed as under : the power to remand a case has been conferred upon the Juc (Appeals) by Section 9 (3) (b) of the u. P. Sales Tax Act, which empow the appellate authority to set aside the assessment and direct assessing authority to pass a fresh order after such enquiry as may directed. The statute does not lay down the grounds upon which appellate authority may remand the case. No limitations have be prescribed restricting the power. The appellate authority exerci quasi-judicial functions and there can be no dispute that the power remand must be exercised by it, not according to whim or humour, but accordance with sound judicial principles. And it is a power whi must be used with circumspection. The appellate authority functic as an impartial authority adjudicating upon rights and liabilit: between the dealer and the Revenue. That adjudication must be effect through a procedure informed by the interest of justice. It is to justice in accordance with law that the appellate authority exis It departs from its function when it permits the influence of partis considerations. ( 12 ) THE rule laid down in the above case has been followed in number of subsequent decisions, but it is not necessary to multip citations. ( 13 ) IT is evident from the decision cited above, that the discretion of t appellate authority, to set aside the assessment, which is a judic: discretion, must be governed by rule and not by humour. It must legal as well as regular. That power cannot be exercised by the concern authority without coming to the conclusion that the order of assessme is wrong and has to be set aside. It must legal as well as regular. That power cannot be exercised by the concern authority without coming to the conclusion that the order of assessme is wrong and has to be set aside. The power of remand by setting asi the assessment should be used, sparingly and only where, after examination of evidence or materials already placed on record, t concerned authority finds that it is not possible for it to make a just ord on the appeal without the assistance of further evidence or the authori from whose order the appeal has been preferred, has failed to record i findings in clear terms. ( 14 ) FROM the above discussion it follows that the order of remand has to be exercised judiciously and not arbitrarily, or in a capricious manner. A capricious or impetuous order of remand, is an abuse of the discretionary power and a higher authority would be fully justified in law to vacate such an order of remand, if no case on facts is made out. ( 15 ) REVERTING to the facts again, as seen earlier, the disputed assessment was set aside because of the five points detailed in the order of the Assistant Commissioner (Judicial), which have already been indicated above in brief. Now the question that mainly arises for consideration, is whether the Sales Tax Tribunal was justified on the basis of findings recorded by the Assistant commissioner (Judicial), in sustaining the order of remand ? No order of remand by setting aside the assessment was called for, when the Assistant Commissioner (Judicial) observed that the account books of the assessee were liable to be rejected because the same were not produced before the Surveying Officer, on 14th February, 1981, inasmuch as, the account books were in fact, not accepted by the Sales Tax Officer in computing the assessment for the year in dispute. Likewise, production of bricks shown, was also not accepted by the Sales Tax Officer and there is no gain in saying that the production shown was not commensurate with the fuel consumed by the assessee, which required further investigation by the Sales Tax Officer. Against expected production of 5,10,000 bricks (as estimated by the Assistant Commissioner) on the basis of fuel consumed, the Sales Tax Officer had himself estimated the production of bricks at more than 9,60,000 bricks. Against expected production of 5,10,000 bricks (as estimated by the Assistant Commissioner) on the basis of fuel consumed, the Sales Tax Officer had himself estimated the production of bricks at more than 9,60,000 bricks. Similarly, no remand was called for with a view to determine the period of operation during which, the brick-kiln functioned, because the operational period shown by the assessee had already been discarded by the Sales Tax Officer. To require the Sales Tax Officer to come to the findings on the same points, after bringing on record further evidence, making further investigation and examination in the account books was hardly justified, as the net result of such enquiries would only lead to best judgment assessment, to which the Sales Tax Officer had already taken recourse in framing the disputed assessment. ( 16 ) IT is now to be seen, whether on the remaining two points, namely, the selling rate and non-consideration of closing stock in determining the turnover, on the facts of the instant case, could provide a valid ground for setting aside the disputed assessment. The Assistant commissioner has already recorded a finding that the average selling rate according to the account books, having regard to the rates on which first class, second class and third class bricks were sold, was to the tune of Rs. 236 per thousand against which a rate of Rs. 220 was applied by the Sales Tax Officer in working out the taxable turnover. About the number of bricks in opening stock it did not require any further investigation, because the opening stock would be the same, what was the closing stock of the preceding year. All that was required to be determined, was whether the turnover determined by the Sales Tax Officer required any interference at the appellate stage. As stated above, the powers of the appellate authority are very wide. It could confirm the assessment, reduce or vary the assessment so as to reduce it or enhance the same. An order of remand in the instant case, could only be justified if it was shown that the evidence on record was not sufficient to decide the question effectively involved in the appeal, unless some further facts were brought on record by examining the account books and further the evidence is such on which there could be a dispute. In the instant case, such is not the position. In the instant case, such is not the position. The considerations which mainly prevailed with the Assistant Commissioner in setting aside the assessment were, that the assessee had not maintained its account books in the ordinary course of business and the turnover determined by the Sales Tax Officer may require enhancement. So far the first consideration is concerned, it would have had some relevance if the account books of the assessee had been accepted by the Sales Tax Officer. The second consideration, whether the turnover was underestimated or not, was a question capable of decision on the facts already on record by the appellate authority, considering the totality of the circumstances. It is settled law that no order of remand by setting aside the assessment can validly be passed merely to afford another inning to the assessing authority. The observation of the Sales Tax Tribunal that by setting aside the assessment, the assessee will have a better opportunity to explain its case before the Sales Tax Officer, is hardly ground on which the order of setting aside the assessment can be sustained. So far as the question of opportunity to the assessee is concerned, the appellate authority was obliged under the law to afford an adequate opportunity to the assessee for explaining its case before passing any order on the appeal. On a careful consideration of the orders passed by the two appellate authorities, namely, the Assistant commissioner (Judicial) as well as the Sales Tax Tribunal, I am of the opinion that the appellate authorities have exceeded their jurisdiction in making the order of remand by setting aside the assessment and directing a de novo enquiry by the Sales Tax Officer. ( 17 ) FOR the reasons stated above, the order passed by the Sales Tax Tribunal cannot be sustained. ( 18 ) A copy of this order shall be sent to the Sales Tax Tribunal, Saharanpur Bench, Saharanpur, for passing an order as required under Section 11 (8) of the Act. It may be observed that it shall be open to the Tribunal to refer the case back to the Assistant Commissioner (Judicial) for deciding the appeal on merits. ( 19 ) THIS revision succeeds and is accordingly allowed with costs. .