ORISSA CEMENT LIMITED Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE short question for consideration in this writ application is whether the appellate authority under the Orissa Sales Tax Act is entitled to reject an application filed by the assessee to withdraw the appeal that had been filed by him under section 23 (1) of the Orissa Sales Tax Act and to initiate a proceeding for enhancement of assessment, or not ?

(2.) THE aforesaid point arises for consideration under the following circumstances : For the assessment year 1966-67, the Sales Tax Officer, Rourkela Circle, passed an order of assessment against petitioner No. 1-company on 25th March, 1970 and communicated the same to the petitioner on 13th May, 1970. Against the said order of assessment, the assessee-petitioner No. 1 preferred an appeal on 1st June, 1970 and hearing of that appeal was fixes to 12th August, 1972. Thereafter, the appeal stood transferred to the newly created appellate authority at Rourkela and was fixed for hearing on 29th March, 1978, but the same could not be heard on that day. Before the appeal could be finally heard, the appellant, the Orissa Cement Limited, filed an application on 13th November, 1979 stating therein that the appellant does not want to pursue the appeal and accordingly abandons the same. The appellate authority, however, instead of treating the appeal to be withdrawn, passed an order on 22nd April, 1980 rejecting the application for withdrawn and fixing a date of hearing therein. The ground for rejection of withdrawal is the existence of prima facie ground from enhancement of the assessment. This order of the appellate authority has been annexed as annexure 3 and the same is being impugned in the present writ petition.

(3.) BEFORE examining the rival submissions, it would be appropriate to note the relevant provisions of the statute since the authorities cited at the Bar have interpreted the different provisions of the statute in coming to the conclusion whether an appeal can be withdrawn by the appellant or not. Under the Orissa Sales Tax Act, section 23 is the provision for appeal. Under the said section, an order of assessment with or without penalty under section 12, 12-A or 12-B can be appealed against within thirty days from the date of receipt of copy of the order in the prescribed manner to the prescribed authority. The word "prescribed" has been defined in section to mean, prescribed by the rules made under the Act. Under the Orissa Sales Tax Rules, Chapter X deals with "appeal". Rule 47 provides that an appeal against an order of assessment with or without penalty lies to the Assistant Commissioner of Sales Tax if the order is passed by the Assistant Sales Tax Officer or the Sales Tax Officer and to the Additional Commissioner of Sales Tax if the order is passed by the Assistant Commissioner of Sales Tax. Rule 48 is the procedure for submission of appeal. Under the said rule, a memorandum of appeal against an assessment to tax under sections 12, 12-A and 12-B with or without penalty shall be presented in form XVI being signed by the dealer or his agent and may be presented in person at the office of the appellate authority or sent by registered post. Rule 49 is the power for summary rejection of appeal. Under the said rule, if the memorandum of appeal is not filed in the specified form or if all the requirements of the form are not fully complied with, then the appellate authority may reject the appeal summarily after giving the appellant such opportunity as it may think fit to rectify the defects. Under sub-rule (2) of rule 49, the appeal can also be summarily rejects on other grounds, but before rejecting the same, the appellant has to be given a reasonable opportunity of being heard. Rule 50 is the provision for hearing of appeal. If the appeal is not summarily rejected under rule 49, then the appellate authority shall fix a day and place for hearing of the appeal and may from time to time adjourn the hearing. Sub-rule (2) of rule 50 authorises the appellate authority to make further enquiry as it thinks fit before disposing of any appeal or to cause further enquiry to be made by the Assistant Sales Tax Officer or the Sales Tax Officer, as the case may be. These are all the provisions of the Act and the Rules dealing with an appeal. Then comes the provision for enhancement with which we are directly concerned in the present case. Sub-section (2) (a) of section 23 of the Act authorises the appellate authority to confirm, reduce, enhance or annual the assessment or the penalty or interest, if any. Sub-section (2) may be extracted hereinbelow in extenso for better appreciation of the point in issue :