BUDHRAM KASHIRAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) The assessee, M/s. Budhram Kashiram, was assessed to sales tax for the periods 2nd of November, 1956, to the 31st of March, 1957 and 1957-58. But on a subsequent inspection of the business premises of the dealer on the 24th June, 1959, several books of account of the dealer were seized and, with reference to such books of account, the assessments for these two periods were reviewed and fresh order of assessment was passed. Assessment for the third period from 1958 to 1959 was also made. According to the dealer, the books of account seized disclosed a considerable amount of credit sales to registered dealers and such sales had been deducted out of the total turnover of the assessee in terms of explanation (a)(ii) below Section 5 of the Bihar Sales Tax Act, 1947. The assessee's contention was, however, rejected by the assessing officer, on the ground that declaration as required under Rule 18 of the Bihar Sales Tax Rules, 1949, was not produced in support of the claim. The appeal preferred by the assessee was dismissed and when the matter was taken to the Board of Revenue, the Board also by its order dated the 8th of February, 1962, accepted the view expressed by the authorities below that it was necessary for the dealer to produce the declaration even for credit sales in order to justify the deduction which the dealer sought out of his total turnover.

(2.) The dealer filed an application for reviewing the Board's order on the ground that the Board was not right in taking the view that it was necessary to produce the declaration in respect of credit sales to registered dealers. The Commercial Taxes Tribunal, which ultimately dealt with this petition by the dealer under Section 24(5)(a) of the Act, rejected the contention of the dealer. Application was accordingly filed under Section 25(1) of the Act before the Tribunal with a prayer that the two questions formulated on its behalf should be referred to the High Court, but the Tribunal rejected the prayer on the ground that no case was made out for making the reference as submitted on behalf of the dealer, after which this Court was moved under Section 25(2) of the Act. Direction was issued by the Court to the Tribunal to refer the following question and reference has been made accordingly. The question is : - Whether in the circumstances of this case the Tribunal was justified in refusing to rectify the order of the Board of Revenue, Bihar, dated 6th February, 1962, under Section 24(5)(a) of the Bihar Sales Tax Act, 1947 ?

(3.) Reliance was placed on behalf of the assessee on the decision of the Supreme Court in the case of The State of Orissa v. M.A. Tulloch and Co. Ltd. [1964] 15 S.T.C. 641 (S.C.). In that case the point for consideration was almost identical with the question raised on behalf of the assessee in the present case. The declaration contemplated in order to justify the claim for deduction of the amount under credit sales to registered dealers was subject to a declaration under Rule 27(2) of the Orissa Sales Tax Rules, 1947. The dealer in that case had not produced the declaration and the claim of the dealer was rejected on that ground. The Supreme Court held, however, that production of mere declaration was not mandatory as Rule 27(2) must be reconciled with Section 5(2)(a)(ii) of the Orissa Sales Tax Act, 1947. Hence, it was open to the dealer to claim exemption by adducing other evidence so as to bring the transaction within the scope of that section. Therefore, if the Sales Tax Officer is satisfied on the other facts on record that there is such a sale on credit to the registered dealer, it is not necessary that the selling dealer must produce a declaration in the form required under Rule 27(2) before he can be held entitled to the declaration sought for. It was urged on behalf of the dealer that in view of the pronouncement of the Supreme Court, the Board was clearly in error in insisting upon the production of the form of declaration as a necessary condition for accepting the plea of sale1 to registered dealers. The Tribunal, however, did not consider that there was any error apparent on the face of record in the decision of the Board of Revenue which would bring the matter within the ambit of Section 32 of the Sales Tax Act, 1959, so as to justify a review of the order. A mere erroneous decision is no ground for review of a final order or judgment unless the error is apparent on the face of record. Since the Board of Revenue had no power to review its order, the. Tribunal also, as its successor had no higher power. The contention of the assessee that the Tribunal had power higher than that possessed by the Board in the matter of review was negatived on the ground that the Bihar Sales Tax Act, 1959, came into effect from the 1st of July, 1959. The liability of the applicant to pay sales tax accrued prior to the date of commencement of the Bihar Sales Tax Act, 1959 and hence in terms of Section 47 of the 1959 Act, all proceedings relating to such liability could be continued and disposed of under the provisions of the Bihar Sales Tax Act, 1947, as if the Bihar Sales Tax Act, 1959, had not been passed and the power of the Tribunal to review any order under the Bihar Sales Tax Act, 1947, was coextensive with the power of the Board and as such the Tribunal could not exercise any higher power than what the Board of Revenue itself was vested with in the matter of review of its order. In my opinion, the argument is correct and it is in consonance with the decision of the Supreme Court in Tungabhadra Industries Ltd. v. The Government of Andhra Pradesh A.I.R. 1964 S.C. 1372, wherein their Lordships distinguished mere erroneous decision from error apparent on the face of record. In my opinion, therefore, the Tribunal was right in proceeding upon the footing that it had no power to exercise its review jurisdiction in giving effect to the decision of the Supreme Court in the above Orissa case.