RAMESHWAR DASS Vs. SALES TAX TRIBUNAL AND ORS.

JUDGEMENT

(1.) THIS is a reference made to this Court by the Haryana Sales Tax Tribunal (for brevity "the Tribunal") on the direction issued by a Division Bench of this Court in S.T.C. No. 30 of 1989 vide order dated September 25, 1996 under Section 42(2) of the Haryana General Sales Tax Act, 1973 (for brevity "the Haryana GST Act"). Accordingly, following question of law has been referred for the opinion of this Court:

(2.) THE facts are not in dispute. Original assessment of the petitioner -firm was finalised on March 20, 1981. Thereafter, some information from the record of Jind and Jamalpur Railway Station was collected and assessment was reopened under Section 31 of the Haryana GST Act for reassessment and it was then finalised on August 27, 1982. The petitioner -assessee preferred an appeal, which was accepted and reassessment order was set aside. The case was remanded back to the Assessing Authority for reassessment after examining the material, which was collected for assessment purposes. The Assessing Authority again framed the assessment by creating a demand of Rs. 34,463 under the Central Sales Tax Act, 1956 (for brevity "the CST Act"). The Assessing Authority also initiated separate proceedings under Section 48 of the Haryana GST Act read with Section 9(2) of the CST Act for imposition of penalty and also for levying interest under Section 29 of the Haryana GST Act. The assessee filed appeal before the Joint Excise and Taxation Commissioner (Appeal), which was rejected. Another appeal was filed before the Tribunal, which affirmed the order passed by the Joint Excise and Taxation Commissioner. Before the Tribunal, on behalf of the assessee, two grounds were urged. Firstly, it was argued that the goods were purchased from Delhi and sent outside the State on consignment basis and, therefore, no tax was leviable. Secondly, it was submitted that the assessee had fixed the rates of gram and gram dal from Rs. 155 to Rs. 160 per quintal and produced a certificate of the Market Committee, Tohana in support of its claim. The argument on behalf of the assessee was that the rate was calculated at Rs. 220 to Rs. 275 by the Assessing Authority without indicating any material constituting the basis for such higher rate. It was, thus, submitted that without there being any legal evidence on record, such higher rates could not have been made the basis for calculation of the price of gram and gram dal.

(3.) SH . J.P. Sharma, learned Counsel for the petitioner, has argued that the Certificate issued by the Market Committee, Tohana, is an authentic document, which had given the then prevailing rates for gram and gram dal from Rs. 155 to Rs. 160 per quintal. According to the learned Counsel, such a document is a legal evidence and has to be regarded as "public document" within the meaning of Section 74 of the Indian Evidence Act, 1872 (for brevity "the Evidence Act") as it forms the record of the acts of an official body, which has been established under Section 11 of the Punjab Agricultural Produce Markets Act, 1961 (for brevity "the 1961 Act"). He has further submitted that there is no evidence on record to the contrary either discussed by the Assessing Authority or the first appellate authority or the Tribunal, which may constitute legal basis for the purposes of calculating the rate of assessment of penalty and interest. Referring to the observations made by the Tribunal in its order dated December 14, 1988, learned Counsel has submitted that it merely refers to the record of the Sales Tax Department and proceeds on conjectures and surmises by assuming the prevailing price of different commodities. According to the learned Counsel, the aforesaid record has neither been produced nor confronted to the petitioner at any state of the proceedings.