NARAYAN D SHETTY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal against the judgment and order dated July 14, 1986, passed by the learned single Judge dismissing the petition filed by the petitioner under article 226 of the Constitution. The assessee runs a restaurant in the name of M/s. Bharat Jyoti Ice-cream and Bhelpuri Centre at kailash Darshan, near Nana Chowk, Bombay 400 007. The sales tax authorities conducted a raid in its business premises and seized certain books and documents covering the period from April 1, 1971 to March 31, 1972 and April 1, 1972 to December 31, 1972. Show cause notices were issued and explanation obtained. Eventually the sales tax officer rejected the assessee's books of accounts, completed the assessment by estimating the turnover at a figure much higher than disclosed and levied heavy penalties. The assessee's appeals to the Assistant Commissioner Sales tax Tribunal were also dismissed. The Tribunal's order is dated July 15, 1977. On September 7, 1978, the Supreme Court delivered a judgment in the case of Northern India caterers (India) Ltd. Governor of Delhi reported in [1978] 42 STC 386. On the basis of the above judgment, the assessee filed two separate applications for rectification before the Sales tax Tribunal under section 62 of the Bombay Sales Tax Act, 1959. It was claimed that in the restaurant run by it eatables were merely served and, therefore, the ratio laid down by the supreme Court in the aforesaid decision was fully applicable. The orders passed by the Tribunal in second appeals, it was urged, could not stand and were required to be vacated. An affidavit was filed claiming, inter alia, that in the restaurant run by the assessee bhelpuri and ice-cream were served ant the customers were not permitted to purchase and take such articles outside the premises. Even unconsumed portion of the food, it was stated, was not allowed to be taken out. Additional affidavit was sought to be tendered at the time of hearing so as to bring the claim of the assessee squarely within the ratio of the Supreme Court decision. The applications were dismissed by the Tribunal holding that it was not permissible for the Tribunal in the proceedings for rectification to reopen the controversy and to ascertain whether the assessee merely served bhelpuri and ice-cream in the restaurant and/or also sold them to be taken out of the restaurant. The Tribunal declined to take the affidavits on record in the rectification proceedings. The assessee had also filed reference applications before the Tribunal arising out of the tribunal's judgment and order dated July 15, 1977, in second appeals with request to refer stated questions to the High Court. Reference applications were also rejected by the Tribunal by its order dated March 24, 1982. Thereafter, the assessee filed the present petition challenging the assessment orders and subsequent decisions in appeals thereagainst. This petition filed by the appellant-assessee, as earlier stated, was dismissed by the learned single Judge of this Court. The learned Judge held that in the facts of the case, the Tribunal had discretion to admit or not to admit fresh evidence in the shape of affidavits. The discretion was properly exercised by the Tribunal and, therefore, the petition could not be allowed. Hence this appeal.

(2.) SHRI Shah, the learned counsel for the assessee, stated that under regulation 17 of the Bombay sales Tax Tribunal Regulations, 1960, the Tribunal had discretion to admit fresh evidence and make such an enquiry as it considered appropriate. The assessee was making the claim on the basis of a Supreme Court decision, which was binding on all courts in India under article 141 of the Constitution of India. According to him, this was an appropriate case in which the Tribunal should have exercised its discretion in favour of admitting fresh evidence. His second submission was that on the basis of the above Supreme Court decision, the restaurant which was only serving and not selling eatables was not liable to sales tax at all. Therefore, neither the Sales tax Officer no the Assistant Commissioner of Sales Tax nor the Tribunal had jurisdiction to make the assessment. He, thus, contended that there was absolute lack of jurisdiction which could and should have been considered by this Court in its writ jurisdiction.

(3.) I am afraid that Shri Shah's submissions are without any merit. It requires to be borne in mind that the rectification applications are made under section 62 of the Sales Tax Act before the tribunal. This section reads thus :