STATE OF ORISSA Vs. BABU LAL CHAPPOLIA

JUDGEMENT

(1.) These three appeals by special leave are directed against the judgment of the High court of orissa in three references made to it by the Sales Tax tribunal under section 24 (1) of the orissa Sales Tax Act, 1947, hereinafter referred to as the Act. The three references concerned were for assessments for three quarters ending 30/06/195 4/09/1954, and 31/12/1954. The following two questions were referred for the opinion of the court in all the references: (i) Is it correct to hold (as the tribunal has held) that the Assistant Commissioner of Sales Tax while disposing of an appeal under section 23 (2) of the Orissa Sales Tax Act is not entitled to take into consideration revised returns and additional grounds of appeal which may be different from the grounds taken in the memorandum of appeal and whether for the first time at the hearing of appeal, such grounds may or may not be entertained (ii) Whether on the facts and circumstances of the case and the documents on record, pointing to the contrary, the order of the tribunal can be maintained as valid in law It is not necessary to give the facts relevant to all the three quarters. It will be sufficient if we set out the facts relevant to first. quarter, i. e. , quarter ending 30/06/1954. The Sales Tax Officer, Cuttack I Circle, by his order dated 29/10/1956, assessed the respondent Babu Lal Chhapolia, hereinafter referred to as the assessee, in respect of aturnover of Rs. 2,46,995. 00. The assessee had sold the cloth imported from outside the State and he claimed deduction under old rule 64 but the Sales Tax Officerdisallowed the claim as the assessee was deemed to have effected the first point of sale in orissa. The assessee filed an appeal before the Assistant Commissioner of Sales Tax, Cuttack Range. The learned counsel for the State, Mr. A. V. Viswanatha Sastri, states that the appeal was heard on 16/04/1957, and order was reserved but somehow the appellate authority did not pass any order. The appeal was heard again on 12/05/1959, and by order dated 17/09/1959, the Assistant Commissioner allowed the appeal, and as a result the assessment was reduced to the figures returned by the assessee. The learned counsel for the appellant states that a fresh return was taken by the Assistant Commissioner and the assessee filed a copy of the agreement between the assessee and Ram Prasad Tormal and raised a fresh point before the Assistant Commissioner that the assessee had worked as an agent of Ram Prasad Tormal to do certain service for him to facilitate the latter's business and in lieu thereof he earned Commission at 11% and that he was not a seller or a purchaser. The Assistant Commissioner accepted this contention. It may be noted here that the Sales Tax Officer was not represented before the Assistant Commissioner. The State filed an appeal against this order and the Sales Tax tribunal allowed the appeal. The appellate order is a short order and it reads as follows :. "for the reasons mentioned in the order passed in second appeal No. 416 of 1959-60 disposed of today this appeal is allowed. ". ; But the order in the second appeal No. 416 has not been printed in the paper book. The assessee thereupon filed an application under section 24 (1) of the Act to the tribunal requesting that the statement of the case be drawn up and referred to the High court. In this application in para 6 it is stated :

(2.) If fresh evidence is received and utilised for setting aside the order of the assessing authority, notice should have been given to the assessing authority. 3. In any view the appellate authority should not have allowed a ground of exemption from sales tax on a basis different from that claimed before the assessing authority. 4. The High court should have made it clear that the Tribunal would be entitled to go into the merits after receipt of the judgment of the High court. The first point does not seem to have been raised before the High court. Further the questions referred do not raise the problem whether a revised return can be filed or not. The only point raised with respect to a revised return is whether it can be taken into consideration. If the appellate authority has the power to allow a newground to be taken, does it matter in what -manner it allows it to be taken Instead of a revised return it could have taken a written statement containing the new ground. Therefore, we do not consider it necessary to deal with the point whether it is competent for the appellate authority to accept a revised return or not. Regarding the second point it is necessary to notice the relevant statutory provisions. Section 23 (2) of the Act provides :