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Supreme Motors Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case Number Special Jurisdiction Case No. 47 of 1976
Judge
Reported in[1980]46STC452(Orissa)
AppellantSupreme Motors
RespondentState of Orissa
Appellant Advocate B.C. Sahu and ; Bijan Roy, Advs.
Respondent Advocate The Standing Counsel (S.T.)
DispositionAppeal dismissed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........at cuttack. its place of business was inspected by an inspector of the department-who verified its cash position by checking the cash box. dispute was raised as to the competence of the inspecting officer verifying the cash box. that has given rise to the first question. since the accounts were rejected by reference to the result of the cash verification, the second question has also been mooted depending upon the answer on the first question.3. section 16(2) of the orissa sales tax act of 1947 (hereafter referred to as the 'act') provides :all accounts, registers and documents relating to the stocks of goods of, or purchases, sales and deliveries of goods, by any dealer and all goods kept in any place of business of any dealer shall at all reasonable times be open to inspection by the.....
Judgment:

R.N. Misra, J.

1. The Member, Additional Sales Tax Tribunal, has stated this case and referred the following two questions for opinion of the court on the assessee's application:

(1) Whether, on the facts and in the circumstances of the case, the inspecting officer of the commercial taxes department has jurisdiction to verify the cash available in the cash box of the assessee-dealer ?

(2) Whether, on the facts and in the circumstances of the case, the Additional Tribunal is justified in rejecting the accounts by not accepting the dealer's explanation in the matter of cash discrepancy ?

2. The assessee is a dealer in automobile and motor cycle parts, its place of business being located at Cuttack. Its place of business was inspected by an inspector of the department-who verified its cash position by checking the cash box. Dispute was raised as to the competence of the inspecting officer verifying the cash box. That has given rise to the first question. Since the accounts were rejected by reference to the result of the cash verification, the second question has also been mooted depending upon the answer on the first question.

3. Section 16(2) of the Orissa Sales Tax Act of 1947 (hereafter referred to as the 'Act') provides :

All accounts, registers and documents relating to the stocks of goods of, or purchases, sales and deliveries of goods, by any dealer and all goods kept in any place of business of any dealer shall at all reasonable times be open to inspection by the Commissioner.

The Commissioner has delegated his authority under this section to his subordinates including the inspector. Therefore, the inspectors, in view of the delegated power, are also entitled to exercise power under Sub-section (2) of Section 16 of the Act. Section 16, however, does not authorise a verification of the cash position, and as there is a statutory provision indicating the power exercisable in the matter, it must follow that there are no additional powers which can be exercised. We are prepared to accept the assessee's contention that Sub-section (2) of Section 16 of the Act covers the entire field and no other power not provided for is exercisable in regard to the same matter.

Reference has been made to a single Judge decision of the Madras High Court in the case of Mariyala Venkateswara Rao, Re [1951] 2 S.T.C. 167, where the scope of Section 14(2) of the Madras General Sales Tax Act of 1939 was under consideration. That provision appears to be akin to Section 16(2) of the Orissa Act. It is stated by the counsel for both sides that there is no other precedent on the question. The only other case we have come across is another single Judge decision of the Madras High Court in P. K. Adimoolam Chettiar, In re [1957] 8 S.T.C. 741, where Mariyala Venkateswara Rao, Re [1951] 2 S.T.C. 167, has been referred to. But the question arising in this case was not examined. We are inclined to think that the view expressed by the learned single Judge correctly states the legal position and the inspecting officer of the department was, therefore, not entitled to verify the cash position with reference to the cash available in the box. The first question, therefore, has to be answered in favour of the assessee.

The second question need not be answered as the Tribunal while giving effect to the advice given by us in terms of Section 24(5) of the Act will deal with that aspect.

There would be no order for costs.

N.K. Das, J.

4. I agree.


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