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State of Orissa Vs. Mukunda Prasad Mohanty - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberSpecial Jurisdiction Case No. 47 of 1975
Judge
Reported in[1978]42STC116(Orissa)
AppellantState of Orissa
RespondentMukunda Prasad Mohanty
Advocates:Standing Counsel (Sales Tax)
Cases ReferredAll India Groundnut Syndicate Ltd. v. Commissioner of Income
Excerpt:
.....deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section..........commissioner rightly stated the law but never found that as a fact by 20th april, 1968, the renewal application was filed.4. in second appeal, the learned member, additional tribunal, jumped to the conclusion that such an application had been made.5. learned standing counsel placed the appellate order before us and his stand seems to be justified. it may be that there was actually an application, but when the two forums below had categorically found that no such application had been made, if the tribunal wanted to differ from them as a fact it was for the tribunal to find out the fact and say that the lower forums were wrong. such a finding is wanting in the appellate order.6. learned standing counsel, therefore, is justified in saying that the only proper way to dispose of this.....
Judgment:

R.N. Misra, J.

1. Two questions have been referred for opinion of the court by the Member, Additional Sales Tax Tribunal, on an application made by the State of Orissa under Section 24(1) of the Orissa Sales Tax Act relating to the period 1968-69. The questions are :

(1) Whether, in the facts and circumstances of the case, it will be deemed that the assessee was permitted to pay tax at the compounding rate for which he was permitted for the years 1966-67 and 1967-68 by merely filing an application on 20th April, 1968, which is within the period of 45 days for the period for which renewal was required even though he was not expressly permitted by the Sales Tax Officer to pay at the compounding rate ?

(2) Whether, in the facts and circumstances of the case, the order reducing the assessment for the year 1968-69 to the returned figure which was passed at the compounding rate is proper ?

2. Undoubtedly, the assessee had the advantage of composition for the two preceding years 1966-67 and 1967-68 in terms of Rule 90-A of the Orissa Sales Tax Rules. Under the Rules, to entitle him to the same advantage for the period 1968-69, the assessee was obliged to make an application for renewal of the licence issued to him within forty-five days from the commencement of the period, i. e., from 1st April, 1968. The assessing officer refused to extend the advantage to the assessee for the year on the stand that no such application had been made ; but while saying so, he wrongly stated that the application should have been made before the period began to run.

3. The Assistant Commissioner rightly stated the law but never found that as a fact by 20th April, 1968, the renewal application was filed.

4. In second appeal, the learned Member, Additional Tribunal, jumped to the conclusion that such an application had been made.

5. Learned standing counsel placed the appellate order before us and his stand seems to be justified. It may be that there was actually an application, but when the two forums below had categorically found that no such application had been made, if the Tribunal wanted to differ from them as a fact it was for the Tribunal to find out the fact and say that the lower forums were wrong. Such a finding is wanting in the appellate order.

6. Learned standing counsel, therefore, is justified in saying that the only proper way to dispose of this case is not to answer the questions posed but to require the Additional Sales Tax Tribunal to examine the questions as a fact again to determine whether on 20th April, 1968, as claimed by the assessee, an application for renewal of the licence for the compounding rate had actually been filed for the year 1968-69. Learned standing counsel also points out with reference to Rule 90-A(3)(c) of the Rules as it stood at the material point of time that only when renewal would actually be granted it would be operative; otherwise the existing licence must be deemed to have been cancelled. We do not agree with the submission because, we cannot pursue ourselves to accept the stand that by inaction of the officer concerned, the position can be taken to be determined. For instance, where an assessee exercises his right for renewal under Rule 90-A(3)(b) by making an application within the time allowed and the public officer charged with the duty of entertaining the same after receiving the application sits tight and does not pass any order in terms of Rule 90-A(3)(c), it cannot be contended that there has been an automatic cancellation of the certificate granted in form No. XXX. If that were so, there would be no meaning of Rule 90-A(3)(b) and by sheer negligence and dereliction in duty, the position would be taken to have been finally determined against the assessee. When an application is made as required under the law, the obvious intention of the rule is that the public officer charged with the duty of entertaining the application has to allow it and that too in such a way that the assessee has not to suffer.

7. In case, there has been an application on 20th April, 1968 and the Member, Additional Sales Tax Tribunal, comes to hold that this has not been allowed, we would require the Additional Tribunal to proceed on the footing that the same has been allowed. Our view receives support from the decision of the Bombay High Court in the case of All India Groundnut Syndicate Ltd. v. Commissioner of Income-tax [1954] 25 I.T.R. 90., under one of the provisions of the Income-tax Act.

8. The reference is accordingly disposed of. We make no order as to costs.

K.B. Panda, J.

I agree.


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