R.N. Misra, C.J.
1. The questions that have been referred at the instance of the revenue for opinion of the Court are :
(1) Whether, on the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, has not erred in facts to have concluded that the declarations in form C were produced before the Assistant Commissioner of Sales Tax ?
(2) Whether, on the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, is correct in law to accept the C forms and direct the Sales Tax Officer to receive and scrutinise the same for assessment to tax as per rules ?
2. The short facts are these: The assessee is a dealer and carries on business in minor forest produce. During the year 1971-72, the assessee despatched myrobalan worth about Rs. 1,38,747.67 to places outside the State and took the plea that he had paid purchase tax on it and no sales tax was leviable. The assessing officer rejected the stand and raised a demand. In first appeal of the assessee, the Assistant Commissioner entertained the stand of the assessee and held that no sales tax was leviable. When the matter came in second appeal at the instance of the State, the Member, Additional Sales Tax Tribunal, found that the assessee's contention that sales tax was not leviable was wrong. He accordingly vacated the appellate order of the Assistant Commissioner. He, however, entertained the stand of the assessee that the inter-State sales were covered by declarations in C forms and at the first appellate stage attempt was made to produce the declarations, but since the appellate authority disposed of the appeal in favour of the assessee on merit otherwise, there was no scope for examining the claim for the reduced rate on the basis of C forms. In second appeal, therefore, while sustaining the liability the matter was remanded for consideration of the claim of reduced rates of tax. This has given rise to the present reference.
3. The learned standing counsel in support of the reference contends that there is absolutely no material that at any stage before second appeal declarations were ever attempted to be produced and for the first time additional evidence could not be received unless a formal application for receiving additional evidence as required under the Rules had been made. Since no such attempt has been made, the direction of the Additional Sales Tax Tribunal is contrary to law.
4. The state of the record seems to be otherwise. Firstly, we are bound by the facts stated in the statement of case and it is not open to either party to wriggle out of any statement made therein, as under the scheme, facts gathered from the parties are supposed to be tabulated into the statement of facts and at the hearing stage neither party is entitled to dispute any statement of fact. There is no affidavit before us that there was any mistake in the statement of facts. In addition to this position, Mr. Agarwalla for the opposite party produces a memorandum of cross-objection filed before the Tribunal long before the disposal of the second appeal where the assessee's stand was that before the first appellate authority, C forms in support of the claim of reduced rate of taxation had been produced, but the same had not been looked into. The conduct of the assessee supports the findings of the second appellate authority.
5. We would, therefore, refuse to accept the submission of the learned standing counsel that there has been an error of facts in the Additional Sales Tax Tribunal concluding as a fact that declarations in form C were produced before the Assistant Commissioner. Once it is held that evidence admissible had been excluded by the Assistant Commissioner while dealing with the appeal, it was open to the Tribunal to remand the matter with a direction that such evidence may be entertained and considered. That does not amount to acceptance of additional evidence within the meaning of the relevant rules under the Orissa Sales Tax Rules of 1947. No application for receiving such additional evidence in the facts of the case was warranted.
6. We would, answer both the questions against the revenue by saying :
(1) On the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, was right in holding that declarations in form C were produced before the Assistant Commissioner of Sales Tax and the State is precluded from disputing this question at this stage.
(2) On the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, was correct in law in directing entertainment of the C forms and disposal thereof in accordance with law. It is not correct that the Additional Sales Tax Tribunal has directed acceptance of the C forms as envisaged in the question.
The assessee shall have costs. Hearing fee is assessed at rupees one hundred only.
B.K. Behera, J.