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Commissioner of Sales Tax Vs. Chunilal Parameswar Lal - Court Judgment

LegalCrystal Citation
Subject Sales Tax
CourtOrissa High Court
Decided On
Case Number S.J.C. No. 21 of 1959
Judge
Reported in[1961]12STC677(Orissa)
AppellantCommissioner of Sales Tax
RespondentChunilal Parameswar Lal
Appellant Advocate G.K. Misra, Adv.
Respondent Advocate R.N. Misra, Adv.
Excerpt:
.....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 be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........to go into these matters. it appears that the tribunal has made a confusion between the appellate powers as contemplated under section 107 of the code of civil procedure and the powers contemplated under the present act. section 107 of the code of civil procedure lays down the general powers of the appellate court and it states:(1) subject to such conditions and limitations as may be prescribed, an appellate court shall have power- (a) to determine a case finally ;(b) to remand a case ;(c) to frame issues and refer them for trial ; and(d) to take additional evidence or to require such evidence to be taken. (2) subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this code on.....
Judgment:

G.C. Das, J.

1. This reference under Sub-section (1) of Section 24of the Orissa Sales Tax Act, 1947, (Orissa Act No. XIV of 1947, hereinafter referred to as 'the Act') raised the sole question :

Whether in the facts and circumstances of the case the order of the Tribunal declining to interfere with the orders of the Assistant Collector of Sales Tax, Ganjam Range, on the point of application of the proviso to Section 5(2)(a)(ii) of the Orissa Sales Tax Act, 1947, in respect of assessment for the quarters ending on 30th June, 1951, and 30th September, 1951, is proper.

2. The facts, giving rise to the proposed question, are these :-

The dealer-assessee (hereinafter referred to as 'the assessee') is a registered dealer under the Act bearing No. G.A. I-146. He was assessed for the quarters ending on 30th June, 1951, to 30th June, 1952. The incontroverted facts are that the assessee purchased taxable commodities on the strength of his certificate of registration giving a declaration under Sub-rule (2) of Rule 27 of the Orissa Sales Tax Rules, 1947, to registered dealers in Orissa from whom he made the purchases. Instead of re-selling them in Orissa, he exported and sold them outside Orissa. Thus, while effecting such sales, he collected sales tax from the outside purchasers. The Sales Tax Officer applied the proviso to Section 5(2) (a) (ii) of the Act to the above facts and held that the purchase-values are to be added back to the taxable turnover of the assessee. But instead of calculating the sales tax on such purchase-value and directing the assessee to pay such tax, he directed the payment of the total collection, by way of sales tax, made by the assessee from the outside purchasers. On appeal, the Assistant Collector of Sales Tax, following the principles as laid down in Khem Chand's case, Since reported in [1953] 4 S.T.C. 394 by the Board of Revenue, Orissa, held that, such purchase-value cannot be added back to the taxable turnover of the assessee for the period prior to 27th November, 1951. The Assistant Collector, however, did not apply the distinction beyond 30th September, 1951, and held that such purchase-value cannot be added back to the taxable turnover for the quarters ending on 30th June, 1951, and 30th September, 1951. Thus, he treated as if such purchase-values were to be added for the period from 1st October, 1951. Eventually, he revised the assessment for the quarter ending 30th June, 1951, and confirmed them for the rest of the quarters. There was an appeal to the Tribunal. The Tribunal, following a decision of this Court, came to the conclusion that the appellate authority was wrong in not adding back to the taxable turnover of the assessee for the quarters ending on 30th June, 1951, and 30th September, 1951. Accordingly, he held the act of not adding back to be illegal. He, however, refused to give relief to the State on the ground that the State did not file any cross-objection as provided in Clause (b) of Sub-section (3) of Section 23 of the Act. Thus the question, referred to this Court, arises out of this appellate order of the Tribunal.

3. The Tribunal, in his order under Section 23(3), while dealing with this aspect of the case, observed :-

Doubtless in the view I have already taken in respect of other quarters the direction given by the Assistant Collector of Sales Tax to exclude such amounts from the taxable turnover of the appellant must be held to be illegal. It is also true that the Tribunal has got power to correct any error or mistake while sitting in second appeal.

He, however, as I have stated earlier, took the view that when there is a provision for filing cross-objection on behalf of the State, the State not having filed any such cross-objection cannot now ask the Tribunal to give a relief which it could otherwise have asked for by way of cross-objection. Or else, Section 23 (3) (b) of the Act, in his view, would be nugatory. Accordingly, he came to the conclusion that such purchase-value cannot be ordered to be added to the taxable turnover of the assessee for the quarters ending on 30th June, 1951, and 30th September, 1951.

4. The Tribunal was constituted for the first time by the Orissa Sales Tax (Amendment) Act, 1957 (Orissa Act XX of 1957). The old Section 3 enumerating the various taxing authorities was substituted by a new section. By Sub-section (2) of the amended Section 3, the Government was empowered to appoint a Tribunal for purposes of exercising such judicial powers as are or may be conferred by or under the provisions of that Act. The amending Section 9 of the aforesaid Act substituted a new section for Section 23, and Section 23(2)(a) laid down the powers to be exercised by the appellate authority. It states that subject to such rules as may be made or procedure as may be prescribed, the appellate authority, in disposing of any appeal under Sub-section (1) may,

(a) confirm, reduce, enhance, or annul the assessment or penalty, if any, or both, or

(b) set aside the assessment or penalty, if any, or both and direct the assessing authority to pass a fresh order after such further enquiry as may be directed.

Sub-section (2) refers only to 'appellate authority'. Doubt was expressed at certain quarters whether the expression 'appellate authority' includes also the powers of the Tribunal. Accordingly, the powers of the Tribunal were declared by another Amending Act in 1958 (Orissa Act XXVIII of 1958). Section 19 of that Act substituted a new clause, being Clause (c), for the old Clause (c) of Sub-section (3) of Section 23. The new Clause (c) runs as follows:

While disposing of an appeal under this sub-section, the Tribunal or the Additional Tribunal, as the case may be, shall have the same powers subject to the same conditions as are enumerated in Sub-section (2) and any order passed under this sub-section shall, except as otherwise provided in Section 24, be final.

Thus, the Tribunal was given specifically the same powers to confirm, reduce, enhance, or annul the assessment or penalty, if any, or both and direct the assessing authority to pass a fresh order after such further enquiry as may be directed. By the 1957 Act, the State Government were, for the first time, given two rights, (1) to prefer an appeal against the decision of the first appellate authority, and (2) to file a cross-objection when there is an appeal filed by the dealer. Accordingly, provision was made under Sub-section (3) of Section 23. Under Clause (a) of Sub-section (3), a right was conferred both on the dealer as well as on the State Government to prefer an appeal if they are dissatisfied with the appellate order made under Sub-section (2) within 30 days from the date of receipt of such order. Clause (b) of the same sub-section conferred the right of filing cross-objection both on the State as well as on the dealer. As we are mainly concerned with this clause, I would quote Clause (b) to Sub-section (3) of Section 23 in extenso :

(b) The dealer or the State Government as the case may be, on receipt of notice that an appeal has been preferred under Clause (a) may, notwithstanding that the said dealer or the State Government may not have appealed against such order or any part thereof, within thirty days of the service of the notice file a memorandum of cross-objections and such memorandum shall be disposed of by the Tribunal or Additional Tribunal, as the case may be, as if it were an appeal presented within time under Clause (a).

Thus, according to this clause either the dealer or the State Government may file a memorandum of cross-objections. Admittedly, in this case no such cross-objection was filed by the State Government. Clause (b) of Sub-section (3) makes it optional either for the dealer or for the Government to file a memorandum of cross-objections. That does not mean that in the absence of a cross-objection, the Tribunal which is the second appellate authority is powerless to determine the matter completely and finally between the parties. The powers of the Tribunal, as I have stated earlier, are to confirm, reduce, enhance or annul the assessment or penalty, if any, or both and direct the assessing authority to pass a fresh order after such further enquiry as may be directed. Doubtless, the State Government has been given a definite right to file a memorandum of cross-objections, but that does not mean that the appellate court having jurisdiction to decide the same matter which could have been taken up in the cross-objection would deny the relief after having come to the conclusion that the order in that behalf by the first appellate authority was illegal. I can well understand if the Tribunal had held that it was at his discretion either to grant the relief or to withhold it and accordingly he did not like to grant the relief to the State Government. But here the Tribunal has the specific jurisdiction to go into these matters. It appears that the Tribunal has made a confusion between the appellate powers as contemplated under Section 107 of the Code of Civil Procedure and the powers contemplated under the present Act. Section 107 of the Code of Civil Procedure lays down the general powers of the appellate court and it states:

(1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power-

(a) to determine a case finally ;

(b) to remand a case ;

(c) to frame issues and refer them for trial ; and

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on courts of original 'jurisdiction in respect of suits instituted therein.

The powers given under the Act are much wider than the powers given under Section 107 of the Code of Civil Procedure to an appellate court. Reference was made to Rule 52 of the Orissa Sales Tax Rules, 1947, which deals with second appeals under Sub-section (3) of Section 27 of the Act. We are concerned with Sub-rule (3) which lays down : 'When in any case the dealer or the State Government, as the case may be, fails to file a memorandum of cross-objection within the time provided for in Clause (b) of Sub-section (3) of Section 23, the appeal shall be disposed of on its merits by the Sales Tax Tribunal'. This rule makes it abundantly clear that in the absence of memorandum of cross-objection by the State Government, the Tribunal is to dispose of the appeal on its merits. The Tribunal was also conscious that it 'has got the power to correct any error or mistake while sitting in second appeal'. The question, therefore, arises whether the Tribunal, in the absence of a cross-objection, should or should not grant the relief after having come to the conclusion that the order in a particular aspect of the case passed by the first appellate authority is illegal. I have no doubt in my mind that in view of the provisions, as discussed above, the Tribunal had the power to dispose of the case on its merits even in the absence of a cross-objection on behalf of the State Government. To dispose of the case on its merits means to pass such orders which ought to be passed and which the case may require, so that there may be full and complete adjudication of the disputes between the parties.

5. Mr. R. N. Misra, learned counsel appearing on behalf of the assessee, did not dispute this position in law. Accordingly we would answer the question in the negative. However, it is open to the Tribunal now to exercise its powers in accordance with law as stated above, keeping in view the circumstances of the case.

6. The reference is thus answered in the negative. There will be no order for costs.

R.K. Das, J.

7. I agree.


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