STATE OF ORISSA Vs. SHEOSANKAR TRADING CO

JUDGEMENT

(1.) THE questions that have been referred at the instance of the revenue for opinion of the Court are :

(2.) THE short facts are these : The assessee is a dealer and carries on business in minor forest produce. During the year 1971-72, the assessee despatched myrobalan worth about Rs. 1,38,747. 67 to places outside the State and took the plea that he had paid purchase tax on it and no sales tax was leviable. The assessing officer rejected the stand and raised a demand. In first appeal of the assessee, the Assistant Commissioner entertained the stand of the assessee and held that no sales tax was leviable. When the matter came in second appeal at the instance of the State, the Member, Additional Sales Tax Tribunal, found that the assessee's contention that sales tax was not leviable was wrong. He accordingly vacated the appellate order of the Assistant Commissioner. He, however, entertained the stand of the assessee that the inter-State sales were covered by declarations in C forms and at the first appellate stage attempt was made to produce the declarations, but since the appellate authority disposed of the appeal in favour of the assessee on merit otherwise, there was no scope for examining the claim for the reduced rate on the basis of C forms. In second appeal, therefore, while sustaining the liability the matter was remanded for consideration of the claim of reduced rates of tax. This has given rise to the present reference.

(3.) THE state of the record seems to be otherwise. First, we are bound by the facts stated in the statement of case and it is not open to either party to wriggle out of any statement made therein, as under the scheme, facts gathered from the parties are supposed to be tabulated into the statement of facts and at the hearing stage neither party is entitled to dispute any statement of fact. There is no affidavit before us that there was any mistake in the statement of facts. In addition to this position, Mr. Agarwalla for the opposite party produces a memorandum of cross-objection filed before the Tribunal long before the disposal of the second appeal where the assessee's stand was that before the first appellate authority, C forms in support of the claim of reduced rate of taxation had been produced, but the same had not been looked into. The conduct of the assessee supports the findings of the second appellate authority.