COMMISSIONER OF SALES TAX Vs. BHIMA PALO

JUDGEMENT

(1.) THE following questions of law have been referred to this Court for opinion by the Sales Tax Tribunal, Orissa, under section 24(1) of the Orissa Sales Tax Act, 1947 :

(2.) THE relevant facts are as follows : The opposite party is a dealer in betel leaves; he was assessed on gross turnover of Rs. 20,704 and a taxable turnover of Rs. 5,400 under section 12(5) of the Orissa Sales Tax Act for the quarter ending 31st December, 1951. On first appeal, the assessment was enhanced in that deduction on sales to registered dealer made by the assessing officer was disallowed for the reason that the opposite party had not produced and could not produce on demand the evidence as required under rule 27(2) of the Orissa Sales Tax Rules. The opposite party being dissatisfied with the orders passed on first appeal came up on revision before the Commissioner of Sales Tax objecting to the levy of tax on estimated local sales amounting to Rs. 5,400 and sales to registered dealer amounting to Rs. 15,304. The Tribunal held that since tax on the corresponding purchases has been levied though illegally on the purchasing registered dealer under the proviso to section 5(2)(A)(a)(ii) and that since tax has been realised from the said purchasing dealer, the levy of tax on the sales made by the opposite party to the said registered dealer amounts to double taxation, and therefore, cannot be sustained. At the time of hearing, the opposite party filed a memorandum and a document purporting to be a declaration under rule 27(2) signed by the purchasing registered dealer on a date after the date of disposal of the first appeal; the Tribunal held that the document is not admissible as evidence under rule 61(1)(a) or (b) but it could be admitted under rule 61(1)(c); the State Government objected to this admission on various grounds including that the document must first be proved to be a genuine one before being admitted; the Tribunal overruled the said objection and admitted the document as evidence and allowed the deduction under section 5(2)(A)(a)(ii). Therefore, the State Government made an application for reference of certain questions to this Court under section 24(1) of the Act for decision. The Sales Tax Tribunal made an order of reference on the said application whereby it referred the said questions of law, hereinbefore quoted, for opinion of this Court.

(3.) CONSIDERED in the light of this legal position, broadly stated above, our answer to the questions referred by the Sales Tax Tribunal are seriatim as follows :