DATTARAM JAGANNATH Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE three questions referred to this court are as follows :

(2.) THESE references relate to quarters ending 30th of June, 1959, to 31st of March, 1962. The facts leading to theses references may be stated in short. The order of assessment was passed on 31st of August, 1962. A copy of that order sent by the department was received by the dealer on 5th of October, 1962. The petitioner states that this order of assessment became missing on 31st October, 1962. On 2nd of November, 1962, an application for certified copy of the order of assessment was filed. Limitation of 30 days for filing an appeal, from the date of receipt of the copy of the order from the department, expired on 4th of November, 1962. The certified copy was obtained on 27th of February, 1963, and the appeal was filed on 28th of February, 1963. The appeal was rejected as being barred by limitation by the Assistant Commissioner of Sales Tax on 21st of May, 1963. A second appeal against that order was dismissed by the Tribunal on 17th of June, 1964. This is how the reference has been made.

(3.) SECTION 23 (1) confers a right of appeal on the assessee. He is to file the appeal within thirty days from the date of receipt of the order. Here again, the expression is "from the date of receipt of the copy of an order of assessment". It does not make clear whether the copy of the order is the departmental order or the certified copy of the order. The second proviso to that section corresponds to section 5 of the Limitation Act, where delay can be condoned by the appellate authority by sufficient cause being shown. This appeal is to be filed in Form XVI. In column 3 of that form the appellant is to state "the order of the (Assistant) Sales Tax Officer/assistant Commissioner/commissioner of Sales Tax, attached hereto, was received by the petitioner on. . . . . " Rules 48 and 49 deal with submission of appeal petition and summary rejection of appeal. Rule 49 says that if the memorandum of appeal is not in the specified form or if all the requirements of the form are not fully complied with, the appellate court may reject the appeal summarily, after giving the appellant such opportunity as it may think fit to rectify the defects. Rule 52 deals with the procedure of filing an appeal before the Tribunal. Rule 73 speaks of supply of copies of the order of the Tribunal. It says that three copies of every order under section 23 or under section 24 passed by the Tribunal shall be forwarded to the Commissioner as soon as practicable. A copy shall also be supplied free of cost and without application to the other party to the appeal or application for reference. Rule 87 lays down that if any dealer applies for certified copy he would be supplied therewith subject to payment of costs.