J.K. Mohanty, J.
1. The assessee filed applications under Section 24(2) of the Orissa Seles-tax Act, 1947 (hereinafter called the 'Act') for a direction to the Addl. Sals-tax Tribunal, Orissa, Cuttack to state a case and to refer the questions arising out of its order for the opinion of the Court. This Court by order dated 17.8.1981 directed the Tribunal to refer the following question for opinion of this Court.
'Whether on the facts and in the circumstances of the case, the Additional Sales Tax Tribunal was justified in determining assessee's liability to be a dealer under the Orissa Sales Tax Act with effect from 1. 10. 1972.'
The learned Addl. Sales-tax Tribunal has referred the above question to this Court for decision.
2. The assessee is a manufacturer of lozenses and sugar candy (Misri). The Assessing Officer on receiving information that the assessee in his business transaction has exceeded the non-taxable limit and has failed to get himself registered under the Orissa Sales-tax Act, started a proceeding under Section 12(5) of the Act and issued notice to the assessee to produce accounts before him. In the absence of the manufacturing accounts and the stock accounts of the law materials, the Assessing Officer rejected the books of account of the assessee that were produced and completed assessment to the best of his judgment. This was for the part of the assessment year 1972-73 and whole of the year 1973-74. The estimated sale from November, 1971 till the year ending 1973-74 was found to be Rs. 80,460.83 p. as against the total sale shown by the assessee at Rs. 52,114.15 P.. This was determined by two assessment orders as per Annexure-4 (one for the quarter ending 31.12.72 to 31.3.1973 and another for the assessment year 1973-74). The tax payable for the quarter ending 31.12.1972 to 31.3.1973 was Rs. 814.30 with penalty of 200/-. The tax determined for 1973-74 was Rs. 1,789.50 P. and the penalty imposed was Rs. 1800/-. In first appeal and second appeal the assessee was unsuccessful, but the Tribunal has reduced the penalty to Rs. 1000/- for the assessment year 1973-74.
3. Before this Court Mr. Mohanty appearing for the assessee, submitted that even assuming for the fake of argument that the total sale estimated is acceptable, the assessing Officer and the appellate authorities have not considered the fact that no tax can be imposed on the sale of the sugar candy (Misri). According to him, out of the total sale figure shown as Rs. 52,114.15 P. for the period from November, 1971 till the end of March, 1974 by the assessee, Rs. 12,387.00 will be for sale of sugar candy which has been held to be non-taxable as per the decision of this Court reported in 51. S. T. C. 75 (State of Orissa v. Satyabadi Sahu & Sons). Learned counsel also argued that all the forums below have not considered the point raised by the assessee that he is not liable to be taxed as a dealer under the Orissa Sales-tax Act as his turnover was much below Rs. 25,000/-per year.
4. After hearing learned counsel for both sides, perusing the records and considering the facts and circumstances of the case, we are of the view that the petitioner cannot be taxed for the sale of sugar candy (Misri) which is not taxable. Learned counsel for the petitioner submitted that the total sale of sugar candy will come to Rs. 12,387/- for the period from November, 1971 till 31.3.1974. It is not possible for us to determine the exact amount of sale of that item at this stage. So in the above circumstances and as agreed to by both parties, we think it appropriate to send the case back to the Addl. Sales-Tax Tribunal for determination of the liability of the assessee according to law after examining the accounts produced by the assessee. It is also open to the Tribunal to look into the question raised by the assessee as to his liability under the Orissa Sales-tax Act as his turn over has not exceeded Rs. 25, 000/-.
5. We, therefore, think it appropriate to set aside the assessment made, but we do not propose to send it back to the Assessing Officer as it will unnecessarily involve delay and harassment to the parties and as agreed to by the parties, this case is sent back to the Addl. Seles-tax Tribunal for disposal according to law.
B.N. Misra, J.
6. I agree.