T. Ramaprasada Rao, C.J.
1. This tax case is against the order of the Sales Tax Appellate Tribunal (Additional Bench), Coimbatore, who, in an appeal under Section 36(1) of the Tamil Nadu General Sales Tax Act, was of the view that the respondent-assessee was entitled to certain concession in the matter of payment of tax on the assessed turnover. It is as against a part of such relief granted to the assessee that the State has come up with this petition to revise the said order.
2. The respondent-assessee is a dealer in Indian-made foreign liquor. It appears that he took over the entire stock of one Manohara Wines, which stock admittedly as quantified was of the value of Rs. 22,004.11. The said stock was transferred on 31st May, 1973. The assessing officers sought to assess the respondent on such stock taken over by him from Manohara Wines. The consistent case of the assessee was that, out of the above stock so taken over by him from Manohara Wines, goods of the value of Rs. 8,275.11 had already suffered tax and that the balance of the stock so taken over could only be taken to be goods which could be subjected to sales tax as if those sales were first sales. This was his case throughout, before the assessing officer as well as before the Appellate Assistant Commissioner. It is not in dispute that the relevant entries from the accounts of Manohara Wines were before the Appellate Assistant Commissioner, but, for reasons not known, the Appellate Assistant Commissioner did not go into the genuineness or otherwise of those records, though he was so mandated to do in law, and assessed the entirety of the stock so taken over of the value of Rs. 22,004.11 as the assessable turnover, and subjected the assessee to tax on the ground that such stock should be taken to be involved in the stream of first sales. Aggrieved by the order of the Appellate Assistant Commissioner, the assessee took up the matter in appeal under Section 36(1) of the Act before the Appellate Tribunal (Additional Bench), Coimbatore. The Additional State Representative did verify the bills with reference to the stock account maintained by Manohara Wines for the purpose of the excise law and found that in respect of the disputed turnover, in the sense disputed by the assessee to the extent of Rs. 8,275.11, tax had already been collected. The Tribunal therefore accepted the said verification and excluded the above amount from the taxable turnover. It is as against this the present tax case has been filed.
3. Mr. Venkataswami, the learned Additional Government Pleader, vehemently contends that, in view of the amended law, as per Section 39-B of the Act, this is a case in which the Tribunal for the first time allowed evidence to be let in, though there is an interdict on such acceptance of evidence before it. According to the Learned Counsel, the provision in Section 39-B would only enable the Appellate Assistant Commissioner to admit such evidence, provided that he is satisfied that such evidence, which is in the shape of account books, etc., is genuine and acceptable. That being the only provision whereby an assessee can prove before the assessing authorities in the higher hierarchy as to the nature of exemption and the quantity of exemption which he could claim, the Learned Counsel says that the assessee cannot be allowed to let in any evidence in substantiation of his original claim that a sum of Rs. 8,275.11 had already suffered tax, for which purpose he introduced bills which Manohara Wines had secured from their sellers, viz., Ajantha Wines, and which bills admittedly showed that the above turnover had suffered tax at one time. The legal contention therefore comes to this, that, as it is accepted law that the onus of proof, that a particular assessable turnover is exempt from the operation of the levy of tax under the Act, is always on the assessee, and as he should prove such entitlement or privilege only in accordance with law and as provided therein, and as the evidence in support of his challenge against the assessment was produced for the first time before the Tribunal, he cannot gain the exemption as claimed.
4. Notwithstanding the fact that there is no intendment in taxation nor any presumption, yet even tax laws are governed by the well-known doctrine that justice should not only be done, but should also seem to have been done. In the instant case, the contention of the assessee throughout was that, when he took over the assets of Manohara Wines, a turnover to the tune of Rs. 8,275.11 had already suffered tax, in the sense that his transferors had paid the tax, and that, therefore, the sales effected by him could only be second sales and should be dealt with as such. This was his specific case before the assessing authority and the Appellate Assistant Commissioner. We have already referred to the fact that entries and extracts from the books of account of Manohara Wines were with the Appellate Assistant Commissioner, but, for reasons not known nor clear, he did not take the trouble of finding out whether the contention of the assessee was true or not; but, in a blanket order passed by him, he was of the view that there was no evidence to substantiate the dichotomy claimed by the assessee that he was entitled to exemption as prayed for. Finding that, as the only way of proving his case, which was always consistent, was to enlighten his contention, the assessee sought the help of the suppliers of the stock to Manohara Wines, viz., Ajantha Wines, and produced the bills of Manohara Wines to further establish his case that the disputed turnover had already suffered tax in the first instance. The Tribunal thought that, in the interests of justice, an opportunity should be given to the assessee to prove or establish that his contention is corroborated by the evidence, which was no doubt sought to be placed before the Tribunal for elucidation. What is relied upon, in a wooden fashion, by the learned Additional Government Pleader is that Sub-section (2) of Section 39-B can only apply to events and proceedings which take place before the Appellate Assistant Commissioner and that it should not be read as part of or intended to be part of Sub-section (3) of Section 39-B. It is here that we said that the argument is wooden. If the legislature has given a privilege to an assessee as also a right to the assessing officer to reciprocally establish as between themselves the correctness of the contention and the decision which they have to make respectively in a matter relating to taxation, then it will be anomalous to hold that, notwithstanding such a privilege given to the assessee and equally the right given to the assessing authority, including the highest one under the Act, such as the Tribunal, the Tribunal is precluded from looking into such evidence produced by the assessee in order to find out whether it is genuine and whether such record or document would substantiate the case already put forward by the assessee. We do not think that in taxing laws the intention of the legislature is to give a privilege to an assessee only before one particular assessing authority and deny that privilege before another authority who is empowered to correct that previous authority in case of an error in judgment. It would lead not only to an anomaly, but also to a denial of justice. As we have already observed, though in tax law there is no intendment, yet, as the principle of justice being done should be known and made known is applicable to all cases and in all circumstances, we are of the view that the admission of evidence in this case in the sense of substantiation of the contention already urged by the assessee, for which the necessary documents were already in the court, would not amount to admission of evidence for the first time before the Tribunal as is sought to be contended by the learned Additional Government Pleader. We are therefore of the view that, in the peculiar circumstances, the Appellate Tribunal can have and, in our view, has, the requisite power to find out whether any register, record, account book or document produced before it is genuine so as to find out whether the assessee is entitled to certain concession or benefit under the Act. It is pertinent to observe at this stage that the assessee had already produced the relevant bills under which Manohara Wines had purchased the disputed stock from Ajantha Wines, and the learned Additional State Representative, after verification of such records, was satisfied that in respect of the disputed stock sales tax had already been collected. This factor cannot lightly be ignored and the assessee directed to suffer tax when he is legitimately not liable to submit to the levy. In this view, we accept the order of the Tribunal and dismiss the tax case.