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Belpahar Refractories Ltd. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberS.J.C. Nos. 72 and 73 of 1966
Judge
Reported in[1971]28STC720(Orissa)
AppellantBelpahar Refractories Ltd.
RespondentState of Orissa
Appellant AdvocateD.P. Pal and ;G.N. Sengupta, Advs.
Respondent AdvocateS.C. Mohapatra, Standing Counsel (Sales Tax)
Excerpt:
.....in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - if the date of receipt of the order is taken as 29th january, 1965, then clearly the appeal is barred by time......accrued in favour of the dealer. such a right cannot be affected without giving him a reasonable opportunity to oppose the prayer for condonation.we would accordingly answer question (2)(a) by saying that the delay in filing the appeal cannot be condoned without giving notice to the respondent. it follows, as a logical corollary, that since the delay was condoned without giving the respondent an opportunity of being heard, he can re-agitate the matter after appearance, and ask the tribunal to get its order reversed after hearing both parties. question (2)(b) is accordingly answered in the affirmative.5. the references are accordingly accepted, but in the circumstances without costs. the reference fee be refunded.acharya, j. i agree.
Judgment:

G.K. Misra, C.J.

1. The, following questions have been referred to this, court under Section 24 (1) of the Orissa Sales Tax Act :--

(1) Whether declaration forms could be rejected only because the written purchase order came into existence after the supplies, even though the supplies were made under an oral contract which was subsequently reduced to writing after the supplies had taken place and was described as the confirmatory purchase order in the declarations submitted ?

(2) (a) Whether the delay in filing second appeal can be condoned and the appeal admitted without giving notice to the respondent in the matter ?

(b) Whether the respondent who had no notice about the condonation of the delay can raise objection to the condonation of the delay at the time of hearing of the appeal ?

2. The first question is covered by our decision in S. J. C. Nos. 113 of 1965 and O. J. C. No. 452 of 1969 disposed of on 3rd March, 1970 since reported as Belpahar Refractories Ltd. v State of Orissa and Anr. [1970] 26 S.T.C. 567. On the analysis made in those cases our answer to this question would be in the negative.

3. To answer the second question, some facts are to be stated. The Assistant Commissioner of Sales Tax decided the cases in favour of the dealer and against the State. A copy of his order was received by the State on 29th January, 1965. Some amendment was made to the order on 29th July, 1965. The State filed an appeal on 23rd August, 1965. The appeal is to be filed within 60 days from the date of receipt of the order. If the date of receipt of the order is taken as 29th January, 1965, then clearly the appeal is barred by time. If on the other hand the date is taken to be 29th July, 1965, the appeal was not barred by time. The learned Tribunal came to the conclusion that the appeal was barred by time. On that footing the State filed an application for condonation of delay. The Tribunal condoned the delay before the appearance of the dealer and without giving him any notice. After appearance, the dealer took an objection that the delay should not have been condoned without hearing him. This objection was overruled by the Tribunal. Question No. (2), in both parts, relates to this matter.

4. We would now proceed to answer this question. The view taken by the Tribunal that the delay in filing the appeal can be condoned without giving notice to the respondent (dealer) is wholly indefensible. It is abhorrent to the principles of natural justice. Once the appeal is barred by time, a right accrued in favour of the dealer. Such a right cannot be affected without giving him a reasonable opportunity to oppose the prayer for condonation.

We would accordingly answer question (2)(a) by saying that the delay in filing the appeal cannot be condoned without giving notice to the respondent. It follows, as a logical corollary, that since the delay was condoned without giving the respondent an opportunity of being heard, he can re-agitate the matter after appearance, and ask the Tribunal to get its order reversed after hearing both parties. Question (2)(b) is accordingly answered in the affirmative.

5. The references are accordingly accepted, but in the circumstances without costs. The reference fee be refunded.

Acharya, J.

I agree.


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