BHUBANESWAR FLOUR MILLS Vs. STATE OF ORISSA

JUDGEMENT

(1.) AT the instance of the assessee, this Court under section 24 (2) (b) of the Orissa Sales Tax Act, 1947, directed the Sales Tax Tribunal to state a case and refer the following question for opinion of the court :

(2.) THE real question for consideration, therefore, is as to whether when the first appeals have been dismissed not on merits but on account of procedural defects and second appeals are carried to the Tribunal, the appeals would lie on merit and are not confined to the question which has been canvassed in the first appeals. This Court in an unreported decision, being the case of Natabar Sahoo v. State of Orissa (S. J. C. No. 102 of 1973 disposed of on 22nd September, 1975) held that when the first appeals had been dismissed as barred by limitation, in second appeal the question of dismissal of the first appeal on the ground of limitation would be available for examination and the second appellate authority would not be entitled to examine the merit of the dispute raised in assessment. The learned counsel for the assessee relies upon the famous case of the Supreme Court in Mela Ram & Sons v. Commissioner of Income-tax [1956] 29 ITR 607 (SC) as also a Bench decision of the Madhya Pradesh High Court in the case of Purshottamdas Mathuradas and Co. Pvt. Ltd. v. Commissioner of Sales Tax, Madhya Pradesh [1969] 23 STC 319. The Supreme Court decision in Mela Ram & Sons v. Commissioner of Income-tax [1956] 29 ITR 607 (SC) was referred to in Natabar Sahoo's case. Referring to this case, the Division Bench of this Court observe :

(3.) When an appeal is dismissed in default, there is thus an additional right to get the appeal readmitted for hearing provided the assessee can satisfy the appellate authority that he was prevented by any sufficient cause for appearing when the appeal was called on for hearing.