G.P. Singh, J.
1. This is a. reference under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958. The reference has been made by the Board of Revenue (Sales Tax Appellate Tribunal) at the instance of the Commissioner of Sales Tax referring for our answer the following question of law :
Whether, on the facts and circumstances of the case, the declarations in annexures II to V were validly and properly rejected and whether it was not legal for the Tribunal to have directed their acceptance ?
2. The relevant facts emerging from the statement of the case are that the assessee Dinesh Kumar Pradeep Kumar of Rewa is registered as a dealer under the Madhya Pradesh Act. The assessee carries on business of Government supplier. The period of assessment is the quarter ending 31st March, 1964. In respect of sales made to the Government departments the assessee claimed the benefit of reduced rate of tax under Notification No. 2044-1885-V-ST (as amended by Notification No. 500-136-V-ST/57) issued under Section 12 of the Act. The assessee produced certain certificates issued by the departments concerned in support of its claim before the assessing officer who rejected the certificates on the ground that they were not in proper form and assessed the sales at the normal rate. The assessee then obtained fresh certificates in proper form (annexures II to V) from the Government departments and produced the same in appeal before the Assistant (Appellate) Commissioner of Sales Tax, who refused to admit them on the ground that they ought to have been produced before the assessing officer. The assessee then went up in appeal before the Board of Revenue. The Board was of the view that the certificates ought to have been admitted by the Assistant Commissioner. The Board, after admitting the certificates, set aside the orders of the assessing officer and the Assistant Commissioner and remanded the case to the former for fresh disposal according to law. Thereafter, on an application made by the Commissioner, the Board made this reference.
3. When the reference came up for hearing before a Division Bench of this Court, the department strongly relied on the case of K. M. Chopra and Co. v. Additional Commissioner of Sales Tax 1966 M.P.L.J. 1115. The learned Judges constituting the Division Bench were doubtful about the correctness of the decision in Chopra's case 1966 M.P.L.J. 1115 and, therefore, they referred the case to a Full Bench. This is how the matter has come up before us.
4. The relevant notification issued under Section 12 confers the benefit of reduced rate of tax in respect of sales made by a registered dealer to the Government or any of its departments 'for the purposes of official use only against a certificate in writing in the appended form'. The appendix to this notification sets out the form of certificate. The notification does not make it a condition of the grant of benefit of the reduced rate of tax that the assessee must produce the certificates before the assessing officer.
5. No provision in the Act or the Rules was brought to our notice which requires that the certificates of the nature referred to in the notification must be produced before the assessing officer and that they cannot be admitted by the appellate authorities. An appellate authority under the Act can make 'such further inquiry as it may think fit' before disposing of the appeal. The relevant provision in this matter is Section 38(5) which reads as follows:
38. (5) Subject to such procedure as may be prescribed and after such further inquiry as it may think fit, the appellate authority in disposing of any appeal under Sub-section (1) or (2) may-
(a) confirm, reduce, enhance or annul the assessment or the penalty or both, or
(b) set aside the assessment or the penalty or both, and direct the officer whose assessment order has been appealed against, to make a fresh assessment, after such further inquiry, as may be directed ; or
(c) pass such orders, as it may think fit.
The wide powers conferred on an appellate authority under Section 38(5), in particular, the power to make a further inquiry, enable the authority to admit in a proper case additional evidence, which the assessee may have failed to produce before the assessing officer. And, as the grant of concessional rate of tax by the notification is not made dependent on the production of the certificate before the assessing officer, we fail to see any reason why the assessee should not get that benefit if the necessary certificates are admitted in a proper case before the appellate authority. Now, in the instant case, the obligation to issue correct certificates lay on the Government departments, who were the purchasers. The assessee could not be blamed for the wrong certificates that were initially issued. The assessee produced these certificates before the assessing officer. When these certificates were rejected on the ground that they were not in the proper form, the assessee applied and obtained fresh certificates from the departments which were produced before the Assistant Commissioner in appeal. There was no fault on the part of the assessee, who all along acted in good faith and with due diligence in the matter of obtaining and producing the certificates. In the circumstances, the Assistant Commissioner was not right in rejecting the certificates produced before him and the Board was right in directing their admission.
6. The case of K.M. Chopra and Co. v. Additional Commissioner of Sales Tax 1966 M.P.L.J. 1115 on which the department relied is entirely distinguishable. That was a case relating to Section 8(4) of the Central Sales Tax Act, 1956, which provides that the provisions of Section 8(1) shall not apply to a sale unless the dealer selling the goods 'furnishes to the prescribed authority' a declaration duly filled and signed by the registered dealer to whom the goods are sold. We have already stated that there is no provision in the Madhya Pradesh Act or in the Rules made thereunder which requires that the certificates, with which we are concerned, should be produced as a condition precedent for claiming the benefit of concessional rate of tax before any particular authority. In the absence of such a provision, Chopra's case 1966 M.P.L.J. 1115 cannot be applied to the facts of the present case and it is unnecessary to go into the' question of its correctness. Indeed, Chopra's case 1966 M.P.L.J. 1115 was distinguished on this ground by a Division Bench in Commissioner of Sales Tax v. Sardar House, Jabalpur 1971 M.P.L.J. 712, where the question related to the admissibility of similar certificates by an appellate authority. In holding that the appellate authority can in a proper case admit the certificates, the Division Bench observed as follows:
The argument of the learned Government Advocate for the department is that to get the benefit of the concessional rate the dealer must produce the certificates before the assessing authority and the certificates cannot be filed in appeal. He was, however, unable to show any provision in the Act or the Rules which lays down that the certificates must be produced before the assessing authority. Reference was made by him to Rule 20. But that rule does not refer to the certificates prescribed by the notification under consideration. In the absence of any provision that the certificates can be filed only before the assessing authority, it cannot be held that the appellate authority is debarred from admitting the certificates in appeal. Section 38(5) of the Act empowers the appellate authority to make 'such further inquiry as it may deem fit'. These words confer wide discretion on the appellate authority to admit . documents which are relevant and which the dealer in spite of his best efforts could not produce before the assessing authority. Reliance was placed by the learned Government Advocate on K.M. Chopra v. Additional Commissioner of Sales Tax 1966 M.P.L.J. 1115. But that was a case under Section 8(4) of the -Central Sales Tax Act, 1956, which requires that in cases of sales to a registered dealer the declaration of the purchasing dealer should be furnished 'to the prescribed authority'. This case has no application where the Act and the Rules do not contain a provision that certificates or documents under which the dealer claims a concession must be filed before the assessing authority. In the absence of any such provision, the cetificates or documents may in proper cases be admitted in appeal or revision. Indeed, Chopra's case 1966 M.P.L.J. 1115 was distinguished on this ground by this court in National Traders (India), Indore v. Additional Commissioner of Sales Tax 1968 M.P.L.J. 688, where it was held that certificates of sales of medicines to Government departments required by Rule 24(ii) could be admitted in revision.
These observations have our full concurrence. Unfortunately the case of Sardar House 1971 M.P.L.J. 713 was not cited before the Division Bench which earlier heard the instant case. Had it been cited, we are sure, the necessity for this reference to the Full Bench would not have arisen.
7. For these reasons, our answer to the question referred by the Board of Revenue is that, on the facts and in the circumstances of the case, the certificates, annexures II to V, were wrongly rejected by the Assistant Commissioner and the Board was right in directing their acceptance. The assessee shall get costs of this reference from the department. Counsel's fee Rs. 150.