TaxTMI 
TaxTMI 
1966 (1) TMI 62
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....ibunal under section 24(1) of the Orissa Sales Tax Act, 1947, hereinafter referred to as the Act. The three references concerned were for assessments for three quarters ending June 30, 1954, September 30, 1954, and December 31, 1954. The following two questions were referred for the opinion of the Court in all the references: (i) Is it correct to hold (as the Tribunal has held) that the Assistant Commissioner of Sales Tax while disposing of an appeal under section 23(2) of the Orissa Sales Tax Act is not entitled to take into consideration revised returns and additional grounds of appeal which may be different from the grounds taken in the memorandum of appeal and whether for the first time at the hearing of appeal, such grounds may or may....
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....d Ram Prasad Tormal and raised a fresh point before the Assistant Commissioner that the assessee had worked as an agent of Ram Prasad Tormal to do certain service for him to facilitate the latter's business and in lieu thereof he earned commission at 1 1/2% and that he was not a seller or a purchaser. The Assistant Commissioner accepted this contention. It may be noted here that the Sales Tax Officer was not represented before the Assistant Commissioner. The State filed an appeal against this order and the Sales Tax Tribunal allowed the appeal. The appellate order is a short order and it reads as follows: "For the reasons mentioned in the order passed in second appeal No. 416 of 1959-60 disposed of today this appeal is allowed." But the ....
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.... first time, which was not mentioned in the original return at the time of assessment. The High Court held that in view of section 23(2) of the Act, and rule 50 of the Orissa Sales Tax Rules, the question was ultimately one of discretion conferred on the Assistant Commissioner and no limitation could be placed on that discretion. It further observed: "It was open to the Member, Sales Tax Tribunal, while hearing the second appeal to examine the propriety of the order of the Assist- ant Commissioner on the materials available and also on the additional material that he may care to admit and then to set aside that order on other grounds, if he chose, but he should not have held that the order was illegal." In the result the High Court answer....
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....it matter in what manner it allows it to be taken. Instead of a revised return it could have taken a written statement containing the new ground. Therefore, we do not consider it necessary to deal with the point whether it is competent for the appellate authority to accept a revised return or not. Regarding the second point it is necessary to notice the relevant statutory provisions. Section 23(2) of the Act provides: "Subject to such rules as may be made or procedure as may be prescribed, the appellate authority, in disposing of any appeal under sub-section (1), may- (a) confirm, reduce, enhance or annul the assessment or penalty, if any, or both, or (b) set aside the assessment or penalty, if any, or both and direct the assessing auth....
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....nt No. 2 raised by Mr. Sastri. Regarding the third point we are of the opinion that it is not open to Mr. Sastri to raise this point before us. This point was not raised before the High Court and at any rate we do not see how this point is germane to the questions referred to the High Court. As we have mentioned above, the appeal was heard ex parte and it appears that the Sales Tax Tribunal allowed the appeal on the ground that the Assistant Commissioner had no authority under the law to allow a question to be raised which would conflict with the return filed by the dealer-respondent. This is how the Tribunal dealt with the question: "Coming to the question involved in the second appeals filed by the State as against the assessments for t....