Orissa High Court
State Of Orissa vs Mineral And Metals Trading Corporation ... on 4 February, 1987
Equivalent citations: [1988]68STC71(ORISSA)
Author: R.C. Patnaik
Bench: R.C. Patnaik
JUDGMENT H.L. Agrawal, C.J.
1. The Member, Sales Tax Tribunal, Orissa, has referred the following question of law under Section 24(1) of the Orissa Sales Tax Act, 1947 for opinion of this Court :
Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in remanding the case to the Assistant Commissioner of Sales Tax for consideration of the C forms and E-I certificates produced before him for the first time by the opposite party-dealer ?
2. The facts are as follows :
The dealer carries on business in manganese ore and iron ore. For the assessment year 1975-76, it was assessed by the Sales Tax Officer, Cuttack, after disallowing its claim for concessional rate of tax as it had failed to produce the necessary declaration forms and certificates.
The Assistant Commissioner of Sales Tax confirmed the assessment order on appeal by the dealer. The Tribunal on further appeal held that the period of 16 days allowed to the dealer to collect the C forms and E-I certificates from different places was undoubtedly too short and that some more time ought to have been allowed. In short, the Tribunal held that sufficient opportunity was not afforded to the dealer to produce the necessary documents in support of its claim for concessional rate of tax and accordingly he set aside the appellate order of the Assistant Commissioner and remanded the matter to him with a direction to accept the declaration forms and the certificates filed before him and make a fresh assessment in accordance with law.
The department challenged the order of the Tribunal and took the stand that when the dealer had claimed concessional rate of tax in the returns, it should have obtained the prescribed declaration forms and certificates for concessional rate of tax under Section 8(4) of the Central Sales Tax Act much before filing of the return. The department's further stand was that in any view of the matter, the case should have been remitted to the Sales Tax Officer for the purpose of assessment of tax and not to the Assistant Commissioner. The Tribunal accordingly has referred the aforesaid question of law for opinion of this Court.
3. In this regard, some provisions of the Central Sales Tax Act and the Rules framed there under need be noticed.
Section 8(4) of the Central Sales Tax Act provides as follows :
The provisions of Sub-section (1) shall not apply to any sale in the course of inter-State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner--
(a) a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority ; or
(b) if the goods are sold to the Government, not being a registered dealer, a certificate in the prescribed form duly filled and signed by a duly authorised officer of the Government :
Provided that the declaration referred to in Clause (a) is furnished within the prescribed time or within such further time as that authority may, for sufficient cause, permit.
Sub-section (1) provides, that sale of goods to Government and registered dealers is liable to tax at the rate of 4 per cent only provided the requirements of sub-section (4) are complied with.
Sub-section (2) of Section 9 provides :
Subject to the other provisions of this Act and the rules made there under, the authorities for the time being empowered to assess, reassess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, reassess, collect and enforce payment of tax, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State :.
Rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules, 1957 which prescribes the relevant forms and time-limit for their filing reads as follows:
12. (7) The declaration in form 'C or form 'F' or the certificate in form E-I or form E-II shall be furnished to the prescribed authority up to the time of assessment by the first assessing authority :
Provided that if the prescribed authority is satisfied that the person concerned was prevented by sufficient cause from furnishing such declaration or certificate within the aforesaid time, that authority may allow such declaration or certificate to be furnished within such further time as that authority may permit.
4. The Tribunal in its main order has referred to Section 12 of the Orissa Sales Tax Act, 1947 which empowers the Commissioner of Sales Tax and his subordinate officers to whom the power of assessment has been delegated by the competent authority to assess tax. The Assistant Commissioner of Sales Tax is one of such officers who has been equated with the Sales Tax Officer for the purpose of assessment of tax. The Tribunal also referred to Rule 27(2) of the Orissa Sales Tax Rules which reads as follows :
A dealer who wishes to deduct from his gross turnover the amount of a sale on the ground that he is entitled to make such deductions...shall furnish a declaration in form XXXIV to the Sales Tax Officer before the completion of the assessment of the period to which the claim relates.
5. On a reference to these provisions, the Tribunal took the view that when the assessee could not get sufficient opportunity to file the necessary declaration forms and certificates before the assessing officer, the Assistant Commissioner was also competent to consider the same which were filed before him. In this view of the matter, it has directed the appellate authority to take into consideration the necessary forms and certificates produced before him by the assessee and thereafter make assessments according to law.
In this connection, Mr. Patnaik, learned Standing Counsel for the department, referred to Rule 61 of the Orissa Sales Tax Rules which puts an embargo on the party to an appeal or application for reference to adduce fresh evidence, whether oral or documentary, before the Tribunal unless---
(a) if the authority from whose order the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) if the party seeking to adduce additional evidence satisfies the Tribunal that the evidence could not be produced earlier in spite of exercise of due diligence, etc.
(c) ...
6. Since the assessing officer had made an ex farie order, he had not taken into consideration the different figures claimed by the dealer liable to concessional rate of tax. Before the appellate authority, the dealer had produced the declaration forms and the certificates after obtaining them from the parties concerned. While refusing to accept the declaration forms and the certificates, the appellate authority took the view that they must be produced before the assessing authority, and, if that is not done, no higher authority (appellate or revisional) would be entitled to entertain the same and grant relief on the basis thereof except in cases where the time allowed by the assessing authority was insufficient or where the assessee was prevented to furnish the same within the permissible time due to unavoidable circumstances and held that the assessing officer was justified in rejecting the prayer of the dealer for further adjournment.
The Tribunal took a contrary view that since sufficient time was not allowed by the assessing authority to the dealer to enable it to obtain the declaration forms and the certificates from a large number of its customers at various distant places, the Tribunal was entitled to admit additional evidence under Rule 61, as the first appellate authority had refused to admit the evidence on a wrong view.
7. The Tribunal relied upon the case of State of Tamil Nadu v. Chellaram Garments (P.) Ltd. [1979] 44 STC 239 (Mad.), which was under the Central Sales Tax Act. There the Madras High Court, on a reference to the provisions just mentioned above, took the view that if the assessing authority is satisfied that the person concerned was prevented by sufficient cause from furnishing such forms before the assessment, the authority may allow such forms to be furnished within such further time as that authority may allow. But there is an observation that if the C forms are filed before the appellate authority, the proper thing for that authority would be to restore the matter to the assessing authority for the purpose of considering the entertainability of the C forms.
8. It is on the basis of this authority that a doubt has been raised as to whether the remand order of the Tribunal should have been before the assessing authority and not before the first appellate authority.
9. Having, however, given my anxious consideration to all the facts and circumstances of the case and the provisions of the Act and the Rules, I feel inclined to take the view that since the powers of both the assessing authority and the appellate authority are co-extensive, the order of remand to the Assistant Commissioner, i.e., the first appellate authority, for taking into consideration all the C forms and E-I certificates is not in any manner vitiated in law.
A somewhat similar question had fallen for consideration before this Court in Sahu Trading Co. v. State of Orissa [1983] 54 STC 122 in a matter arising out of the Orissa Sales Tax Act, 1947. In that case also, the declaration forms were not furnished at the original stage, and on a reference to the provisions of the Act and the Rules it was observed that there was no provision in them to the effect that declarations not furnished at the original stage could not be produced later. Therefore, in the absence of any such prohibition, they can be certainly produced as evidence before the first appellate authority as well as, in appropriate cases, before the Tribunal in second appeal after complying with the requirement of Rule 61 of the Orissa Sales Tax Rules and it is in the discretion of the appellate authority to accept such evidence.
10. No provision was brought to our notice that the additional evidence received by the Tribunal cannot be looked into by it and that it must remit the matter to the assessing authority. It is the discretion of the authority receiving the additional evidence to make an order in that regard depending upon the nature of the additional evidence.
Since the dealer had produced the declaration forms and the certificates before the first appellate authority for his consideration, in my view, the Tribunal was correct in remanding the matter to that authority for consideration of the said forms and the certificates. Before, however, concluding, I must observe that if the Assistant Commissioner entertains any doubt regarding the genuineness or otherwise of any declaration or certificate which in his opinion cannot be decided by him in a proper or convenient manner, it is open to him to get the validity and genuineness of those declaration forms and certificates examined by the assessing authority and then decide the issue and make the final assessment order.
11. In my opinion, therefore, the answer to the question as such referred to this Court is that the Tribunal did not commit any illegality in remanding the case to the Assistant Commissioner for consideration of the C forms and the E-I certificates produced by the dealer.
In the circumstances, I shall, however, make no order as to costs.
R.C. Patnaik, J.
12. I agree.