- (1.) AT the instance of Excise and Taxation Commissioner, Haryana the Sales Tax Tribunal Haryana has referred the following question for our opinion: "whether the appellate jurisdiction of Tribunal Under Section 39 of the Haryana General Sales Tax Act 1973 extends to the order passed by the Excise and Taxation Commissioner Haryaaa Under Section 44 of the Act" . The facts lie in a narrow compass. Excise and Taxation Commissioner Haryana passed order dated July 12, 1979 Under Section 44 of the Haryana General Sales Tax Act, (973 (hereinafter called the Act) whereby he ordsred withholding refund of two amounts of Rs. 11,451/- and Rs 2 195/- which had become due to the assessee: on amount of acceptance of his appeal against assessment orders for the year 1974-75. The assessee went up in appeal before the Sale Tax Tribunal. It was partly allowed. The impugned order was set aside and the case was remanded to the Excise and Taxation Commissioner, Haryana for a decision afresh. The Excise and Taxation Commissioner made an application Under Section 42 (1) of the Act and desired reference of the question ex- tracted in the opening part of the judgment for opinion of this Court. The Tribunal accepted this application and has referred the question sought to be referred.
(2.) AT the threshold, a preliminary objection has been raised on behalf of the respondent that the question that was framed and on which the opinion of this Court is sought does not arise out of the order of the Tribunal. The Tribunal had decided the appeal on merits. No objection regarding maintainability of the appeal filed by the assessee was raised before the Tribunal. The observations in the reference order that "obviously, in passing the impugned order, though not clearly under cored, the Tribunal took the view that the jurisdiction of the Tribunal Under Section 39 of the Act includes the, order passed Under Section 44 of the Act also" are not supported by the clear language of the brief order dated 16th February, 1981 of the Sales Tax Tribunal partly allowing the appeal of the lassessce.
(3.) WE have beared learned counsel for the parties and perused order dated 16th February, 1981 passed by the Tribunal. It is a short order consisting of two paras There is not even a whisper of the objection that the appeal was not competent. There is no reference whatsoever to the maintainability of the appeal. The observations in the reference order quoted above are not supportable from the contents of the order dated 16th February, 1981. It is clear that this question was not raised before the Tribunal and it did not at all address itself to this question. It has not in any way expressed that it had the jurisdiction to entertain appeals Under Section 39 of the Act even against orders passed by the Excise and Taxation Commissioner in exercise of the jurisdiction conferred on him Under Section 44 of the Act. In similar circumstances, the Final Court observed in Commissioner of Income-tax v. George Henderson and Co. Ltd. , 66 I. T. R. 622 (At page 629) as under : "it is true that the court is bound to proceed norrrally on the findings of fact which are mentioned in the statement of the case. But if the statement of the case does not correctly summarise or interpret the finding recorded in the order of "the Appellate Tribunal which has been made part of the case, the court is entitled to look at-the order itself in order to satisfy itself what was actually the finding of the Appellate Tribunal" .;