KRISHNA STORES Vs. COMMISSIONER OF SALES TAX ORISSA

JUDGEMENT

(1.) THE petitioner is a firm carrying on business at Kantabanji in the district of Bolangir and has been registered as a dealer under the Orissa Sales Tax Act (hereinafter REFERRED TO as the "act"), with registration number B. P. II-93. The Sales Tax Officer reassessed the dealer for the year 1969-70 under the provisions of section 12 (8) of the Act and completed the assessment under section 12 (4) of the Act for the year 1970-71. Both the order of reassessment as also the order of assessment were made on 27th May, 1972, and by these, additional tax was demanded for both the years. The assessee preferred appeals before the Assistant Commissioner of Sales Tax at Bolangir and its appeals were registered as Appeals Nos. 17 and 18 of 1972-73. Both these appeals were dismissed summarily on account of non-removal of defects which had been pointed out by the appellate authority and no further and no further steps were taken against the said appellate decisions. The Assistant Commissioner of Sales Tax, however, issued notices under section 23 (4) of the Act for revising the orders of assessment and, while that matter was pending, by notice dated 21st March, 1975, the Commissioner of Sales Tax purported to revise the very same assessments. Before the Commissioner, the matters were posted to 21st April, 1975, and were adjourned to 29th April, 1975, and readjourned to 30th April, 1975. On that date, the assessee wanted to know the reasons for the initiation of the suo motu proceeding for revision. On 2nd May, 1975, the grounds were furnished to the petitioner's Advocate at Cuttack fixing 7th May, 1975, for hearing. The intimation sent by his counsel was received by the petitioner on 9th May, 1975, and as such the petitioner could not instruct his counsel on facts. The Commissioner passed his orders on 26th May, 1975, enhancing the assessments. These orders of the Commissioner enhancing the tax demand are assailed in these two applications. Two contentions have been raised in support of the applications : firstly, jurisdiction under section 23 (4) of the Act could not have been exercised inasmuch as the orders of assessment had been affirmed by the appellate authority and rule 80 of the Orissa Sales Tax Rules (hereinafter called the "rules") operated as a bar; and, secondly, the order of revision which is prejudicial to the petitioner has been passed without affording a reasonable opportunity of hearing to the assessee.

(2.) A counter-affidavit has been filed contending that the summary rejection the appeals did not lead to merger of the orders of assessment in the appellate orders and, therefore, the orders of assessment were open to revision. It has also been contended that reasonable opportunity had been afforded to the petitioner and even the ground on which the revision proceeding had been initiated were communicated to the petitioner through its counsel.

(3.) NEXT for consideration comes the question as to whether the summary dismissal of the two appeals of the petitioner by the Assistant Commissioner could be taken as appellate orders within the meaning of rule 80. There is no dispute that an appeal against such of the two orders had been filed before the Assistant Commissioner of Sales Tax and each of them was dismissed by the appellate authority for non-removal of defects. The order of dismissed admittedly was under rule 49 of the Rules. Mr. Mohanty for the petitioner contends that even when an appeal was summarily dismissed for non-removal of defects, the order of assessment had merged in the appellate order of the Assistant Commissioner and, therefore, the restriction under the 80 became operative and excluded the Commissioner's revisional jurisdiction. Learned sanding counsel, on the other hand, has contended that it is not every order of the appellate authority that leads to merger of the original order in the appellate order and, therefore, when the appeals had been dismissed summarily there was no decision on merit at all of the appellate authority and the principle of merger, therefore, is not attracted. We shall not proceed to examine this interesting question. In the case of Gojer Brothers (P.) Ltd. v. Shri Ratan Lal Singh (A. I. R. 1974 S. C. 1380), the Supreme Court pointed out :