STATE OF ORISSA Vs. BISWANATH PADHI

JUDGEMENT

(1.) THE dealer registered under the Orissa Sales Tax Act, 1947 (in short hereinafter "the Act") purchased paper free of tax by giving declaration form XXXIV for resale in Orissa. He utilised the same in manufacturing exercise books and printing of books. The Sales Tax Officer demanded tax in respect of the entire turnover of purchase of papers for violation of the provisions of section 5 (2) (A) (a) (ii) of the Act. In appeal the same was confirmed. In second appeal, the Tribunal found that the dealer was selling the goods to his manufacturing unit. From that unit, instead of obtaining declaration in form IV by mistake, he obtained declaration in form XXXIV, although in his manufacturing account he has posted the value of the papers and also in the sale account effecting sale to the manufacturing unit. Finding that this was a mistake, the Tribunal was of the opinion that the defect was neither pointed out to the dealer nor any opportunity was extended to him to rectify the same. Being satisfied that the dealer has actually utilised the paper in his manufacturing unit and paid tax thereon, and Tribunal was of the opinion that opportunity should be given to the dealer to produce declaration in form IV since such mistake was not brought to his notice at any stage. The Sales Tax Officer was directed to accept declaration in form IV and grant concession as claimed by the appellant. Aggrieved by the same, the State of Orissa filed an application under section 24 (1) of the Act. Before the Tribunal, decision reported in [1982] 51 STC 401 (SC) (Rameswarlal Murlidhar v. State of Orissa) was referred to and it was held that transfer of proper purchased free of tax by giving declaration in form XXXIV is not a contravention of section 5 (2) (A) (a) (ii) of the Act. The Tribunal further found that the conclusion arrived at by the Tribunal that form XXXIV was utilised by mistake instead of form IV on the facts and circumstances of the present case, is not a question of law. On such finding, prayer for reference was refused. Claiming the refusal not to be justified, this application under section 24 (2) (b) has been filed.

(2.) IN this Court while Mr. A. B. Misra, learned Standing Counsel reiterating the stand of Revenue, Mr. S. R. Das, learned counsel for the dealer submitted that the manufacturing unit of the dealer having sold the exercise books and printed books, there is no contravention of section 5 (2) (A) (a) (ii) of the Act.

(3.) IN case, we call for a statement of case there would be long delay to answer the question in disposal of the dispute and both dealer as well as department would unnecessarily be prejudiced on account of delay. Since no further facts would be necessary in the present case, we treated the facts as available in the second appellate order to be the statement of case. Both parties have agreed to this.