Decided on April 25,1978



MISRA, J. - (1.) THE State of Orissa, defendant in a title suit, has carried this appeal against the reversing judgment and decree of the learned Additional District Judge of Dhenkanal.
(2.) THE plaintiff instituted the suit on 26th June, 1974, asking for declaration that an assessment made under the Orissa Sales Tax Act (hereinafter referred to as the "Act") and the acceptance of the requisition for realisation of the assessed tax and penalty by the certificate officer were without jurisdiction, illegal and inoperative and the amount for which the certificate proceeding had been initiated was not collectible from him. The plaintiff alleged that he carried on business in cotton cloth and was a registered dealer under the provisions of the Act and had been assigned registration number CU-II/1948. For the quarter ending 31st December, 1957, he had duly submitted his return along with evidence showing payment of admitted tax. No order of assessment or notice of demand as provided in section 13(4) of the Act had ever been served on him and though the plaintiff was not a defaulter, proceedings were taken to recover the amount as a public demand from him. He came to know that an assessment had been made and penalties had been levied only when he was served with notice under the provisions of the Orissa Public Demands Recovery Act by the certificate officer. He filed an obligation before the certificate officer and against the rejection of the objection he preferred an appeal before the Additional District Magistrate, but obtained no relief. He ultimately filed this suit on the allegation that no notice of demand had been served as provided in section 13(4) of the Act and, as such, the alleged demand had not become recoverable as an arrear of land revenue. The certificate officer had no jurisdiction to entertain the certificate and the amount was not collectible as a public demand. The sole defendant in defence pleaded that no suit lay for concellation of an assessment in view of the clear bear under section 22 of the Act. The suit was also hit by sections 42 and 45 of the Public Demands Recovery Act. It was pleaded that a valid assessment had been made and the plaintiff had defaulted in making payment and, as such, penalty had been levied and, in due course, steps had been taken to collect the demand as provided by the statute.
(3.) AT the trial, the plaintiff examined himself and produced certain documents. Two witnesses were examined on behalf of the defendant, being an employee of the sales tax department, who produced certain records, and the peon in the employment of the sales tax department, who is said to have served the notice. Certain documents were also exhibited. The learned Subordinate Judge, who tried the suit, came to hold that : (i) The suit was not maintainable in the present form; (ii) The civil court had no jurisdiction to try the suit in view of the provisions in section 22 of the Sales Tax Act; (iii) The suit was also not maintainable in view of section 42 of the Orissa Public Demands Recovery Act; (iv) The assessment was legal and valid and the notice of demand and the copy of the order of assessment had been duly served on the plaintiff. Accordingly, the certificate proceeding was not assailable. ;

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