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2013 DIGILAW 76 (ORI)

ANDREW YULE AND CO. LTD. v. STATE OF ORISSA

2013-03-15

I.MAHANTY, RAGHUBIR DASH

body2013
ORDER 1. Heard Mr. Jagabandhu Sahoo, learned senior advocate for the petitioner and Mr. R. P. Kar, learned standing counsel for the Commercial Tax. In the present sales tax revision, challenge has been made to an order of the Sales Tax Tribunal, Cuttack, dated November 24, 2010 whereby, the Tribunal came to dismiss the second appeal filed by the petitioner by affirming the order passed by the first appellate authority. 2. Mr. Sahoo, learned senior counsel for the petitioner, inter alia, asserts that admittedly, the petitioner had not submitted certain declaration forms including form IV for sales effected to M/s. SOUTHCO for setting up of electricity distribution system and the first appellate authority concluded the assessment on such basis. He further asserts that the inability of the assessee to submit declaration forms was not intentional and beyond the control of the petitioner and since it obtained the said declaration forms after disposal of the first appeal the petitioner filed the same along with the second appeal before the Tribunal. 3. He asserts that although the Tribunal recorded the submissions of the appellant to the fact that the declaration forms collected was admitted in the record, yet, no reason has been provided by the Tribunal for non-acceptance of the said declaration forms and in spite of that, proceeded in the matter on the basis that such declaration forms had never been provided. Hence, it is incumbent upon the second appellate authority to deal with the same and not to proceed on the basis that the appellant had failed to provide such declaration forms before the first appellate authority. In this respect, he placed reliance on the case of Tata Refractories Limited Vs. Commissioner of Sales Tax and Others, 4. Mr. Kar, learned standing counsel for the Commercial Tax Department, submits that while it may be a fact that the petitioner had filed the declaration forms along with its grounds of appeal before the Sales Tax Tribunal but such "additional evidence" had been sought to be filed without the necessary petition as required under rule 61 of the Orissa Sales Tax Rules, 1947 (hereinafter referred to as "the Rules"). In this respect, he placed reliance on the case of Sahu Trading Co. Vs. State of Orissa, 5. In this respect, he placed reliance on the case of Sahu Trading Co. Vs. State of Orissa, 5. Having heard the learned counsel for the respective parties and on perusing the impugned order of the Tribunal, it is clear therefrom that the Tribunal appears to have not dealt with the issue about the declaration forms including form IV which were submitted before it and clearly proceeded ignoring the same, proceeded on the understanding that such declaration forms had not been submitted at all. 6. For better appreciation of the case, rule 61 of the Rules, 1947 is quoted hereunder: "61. Fresh evidence and witness.--(1) No party to an appeal or application for reference shall be entitled to adduce fresh evidence whether oral or documentary, before the Tribunal: Provided that-- (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 any party including the State Government seeking to adduce additional evidence satisfies the Tribunal that such evidence notwithstanding the exercise of due diligence was not within its knowledge or could not be produced by it at or before the time when the order under appeal was passed, or (c) If the Tribunal requires any documents to be produced or any witness to be examined to enable it to pass order or for any other substantial cause, the Tribunal may allow such evidence or document to be produced or witnesses examined and in such case the other party shall be entitled to produce rebutting evidence, if any. (2) When fresh evidence has been adduced the parties may, if they so desire, address the Tribunal on points arising out of the fresh evidence." 7. Admittedly, in the present case, no petition under rule 61 of the OST Rules appears to have been filed and the submissions of the declaration form has been made by way of assertion made in the memo of the second appeal. The same cannot be accepted as satisfaction of the requirement of rule 61 of the Rules. On perusal of the judgment in the case of Tata Refractories Limited Vs. Commissioner of Sales Tax and Others, the honourable Division Bench of this court presided over by Justice A. Pasayat (as the then was) came to hold in paragraph 4 which is as follows (page 346 in 95 STC): "4. On perusal of the judgment in the case of Tata Refractories Limited Vs. Commissioner of Sales Tax and Others, the honourable Division Bench of this court presided over by Justice A. Pasayat (as the then was) came to hold in paragraph 4 which is as follows (page 346 in 95 STC): "4. It is trite law that when the assessee shows sufficient cause for non-production of declaration forms at the stage of assessment, they can be accepted at the first appellate stage, and in a given case they may also be accepted as additional evidence by the Tribunal..," 8. The said judgment appears to be in consonance with the views expressed by this court in the case of Sahu Trading Co. Vs. State of Orissa, In the said judgment, this court presided over by Justice R. N. Misra (as the then was) placed reliance on the judgment of the honourable Supreme Court in the case of State of Orissa v. Babu Lal Chappolia [1966] 18 STC 17 (SC) and came to hold as follows (page 125 in 54 STC): "Undoubtedly, rule 27 requires that the declarations should be furnished before assessment is made. In the scheme of the procedure for assessment, the declarations are bound to be produced before the assessment is completed in case the assessee is to be given the deductions he claimed. There is however no provision in the Act or the Rules to the effect that declarations not furnished at the original stage could not be produced later. There may be cases where for some good reason deductions though claimed could not be supported by production of declarations at the assessment stage. In the absence of any prohibition they can be certainly produced as evidence before the first appellate authority and in view of what has been said by the Supreme Court in case reported in State of Orissa v. Babu Lal Chappolia [1966] 18 STC 17 (SC), such additional evidence would be received by the first appellate authority. In a suitable case, such declaration can even be produced as additional evidence before the Tribunal in second appeal after complying with the requirements of rule 61 of the Rules..." 9. In a suitable case, such declaration can even be produced as additional evidence before the Tribunal in second appeal after complying with the requirements of rule 61 of the Rules..." 9. Therefore, in view of the judgments as cited by the learned counsel for the respective parries and after perusing the relevant rule concerned in the present case, the appellant had procured the necessary declaration forms prior to filing of the second appeal and had submitted before the Tribunal but without filing a petition under rule 61 seeking permission to adduce as additional evidence before the Tribunal as required under rule 61 of the Rules. 10. Therefore, in consideration of the aforesaid submissions made and the cases cited above, in the interest of justice, we hereby quash the order of the Tribunal dated November 24, 2010 passed in S. A. No. 515 of 2004-05 and remit the matter back before the Tribunal. Liberty is also granted to the appellant to file petition under rule 61 of the Rules. If such petition is filed, the Tribunal shall do well to deal with the same strictly in accordance with law. 11. Nothing stated in this order shall be construed as an expression of any opinion on the merits of the case and it shall be open for the Tribunal to consider the rival contentions of the parties and adjudicate the matter afresh. Since the matter has been substantially delayed, the petitioner undertakes to file copy of this order along with the petition under rule 61 of the Rules within a period of four weeks from today whereafter, the Tribunal shall do well to dispose of the appeal in accordance with law expeditiously preferably, within a period of three months from the date of filing of such an application. 12. Free copy of this order be handed over to the learned counsel for the Revenue for necessary communication and compliance. Urgent certified copy of this order be granted on proper application.