SRI NATABAR SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) ON an application of the assessee under section 24 (1) of the Orissa Sales Tax Act (hereinafter referred to as the "act"), the Member, Additional Sales Tax Tribunal, has stated a case and referred the three questions quoted below for opinion of the Court :

(2.) THE assessee is a grocer carrying on business within the town of Cuttack. For the assessment year 1966-67, the accounts of the assessee were rejected and a best judgment assessment was entered. The assessee preferred a first appeal challenging the additional demand of Rs. 170. 31. In the memorandum of appeal, the assessee declared that he had received the order of assessment on 20th February, 1970. As the first appellate authority found that the order was actually received on 3rd December, 1969, and not on 20th February, 1970, as alleged by the assessee, he called upon the assessee to show cause as to why the appeal may not be rejected as being out of time in view of the prescribed limitation of thirty days for preferring of appeal. The assessee filed an application on 26th September, 1970, pleading continuous illness as the ground for condonation of delay. As there was no personal appearance on the date fixed, the appellate authority took the explanation furnished by the assessee into consideration and held that the cause shown was an afterthought and was founded upon deliberate falsehood. He also found that the first appellate authority under the statute has no powers to condone the delay by applying the principles under section 5 of the Limitation Act. Accordingly the appeal was summarily rejected.

(3.) THAT the first appeal was barred by limitation is not disputed. Mr. Pasayat for the assessee also does not dispute that the first appellate authority under the Act has no power to condone delay in filing of the appeal though according to him the first appellate authority had been given such a power under the parent Act and while making certain amendments to section 23, by oversight the corresponding provision empowering the first appellate authority to condone delay in preferring of appeals has been omitted from the statute. According to Mr. Pasayat even thought the first appeal had been dismissed on the ground of limitation and merits of the case had not been examined, since the summary dismissal of the first appeal on the ground of limitation amounted to a decision in the appeal, a second appeal on all counts was tenable. He relies in support of his contention on an observation of this Court in the case of Commissioner of Sales Tax v. Ramakaran Agarwalla [1962] 13 STC 407.