TaxTMI 
TaxTMI 
TaxTMI 
1961 (3) TMI 80
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....e quarters ending on 30th June, 1951, and 30th September, 1951, is proper." 2.. The facts, giving rise to the proposed question, are these: The dealer-assessee (hereinafter referred to as "the assessee") is a registered dealer under the Act bearing No. G.A. I-146. He was assessed for the quarters ending on 30th June, 1951, to 30th June, 1952. The incontroverted facts are that the assessee purchased taxable commodities on the strength of his certificate of registration giving a declaration under sub-rule (2) of rule 27 of the Orissa Sales Tax Rules, 1947, to registered dealers in Orissa from whom he made the purchases. Instead of re-selling them in Orissa, he exported and sold them outside Orissa. Thus, while effecting such sales, he collec....
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.... he held the act of not adding back to be illegal. He, however, refused to give relief to the State on the ground that the State did not file any cross-objection as provided in clause (b) of sub-section (3) of section 23 of the Act. Thus the question, referred to this Court, arises out of this appellate order of the Tribunal. 3.. The Tribunal, in his order under section 23(3), while dealing with this aspect of the case, observed: "Doubtless in the view I have already taken in respect of other quarters the direction given by the Assistant Collector of Sales Tax to exclude such amounts from the taxable turnover of the appellant must be held to be illegal. It is also true that the Tribunal has got power to correct any error or mistake while s....
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.... set aside the assessment or penalty, if any, or both and direct the assessing authority to pass a fresh order after such further enquiry as may be directed." Sub-section (2) refers only to "appellate authority". Doubt was expressed at certain quarters whether the expression "appellate authority" includes also the powers of the Tribunal. Accordingly, the powers of the Tribunal were declared by another Amending Act in 1958 (Orissa Act XXVIII of 1958). Section 19 of that Act substituted a new clause, being clause (c), for the old clause (c) of sub-section (3) of section 23. The new clause (c) runs as follows: "While disposing of an appeal under this sub-section, the Tribunal or the Additional Tribunal, as the case may be, shall have the same ....
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....thin thirty days of the service of the notice file a memorandum of crossobjections and such memorandum shall be disposed of by the Tribunal or Additional Tribunal, as the case may be, as if it were an appeal presented within time under clause (a)." Thus, according to this clause either the dealer or the State Government may file a memorandum of cross-objections. Admittedly, in this case no such cross-objection was filed by the State Government. Clause (b) of sub-section (3) makes it optional either for the dealer or for the Government to file a memorandum of cross-objections. That does not mean that in the absence of a cross-objection, the Tribunal which is the second appellate authority is powerless to determine the matter completely and ....
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....ire such evidence to be taken. (2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on courts of original jurisdiction in respect of suits instituted therein". The powers given under the Act are much wider than the powers given under section 107 of the Code of Civil Procedure to an appellate court. Reference was made to rule 52 of the Orissa Sales Tax Rules, 1947, which deals with second appeals under sub-section (3) of section 27 of the Act. We are concerned with sub-rule (3) which lays down: "When in any case the dealer or the State Government, as the case may be, fails to file a memorandum of cross-objection within the ti....