K. S. LODHA, J. - (1.) THIS is an application for review of my judgment dated February 12, 1988 (Reported as Gewar Chand Kesari Mal v. State of Rajasthan [1988] 71 STC 270 (Raj ). ). Office has raised an objection that the application for review is barred by time. However, an application under section 5 of the Limitation Act, 1963, has been filed along with an affidavit and having perused the same, I am of the opinion that the delay may be condoned. The same is, therefore, condoned.
(2.) ON the merits of the review application, it is urged by the learned counsel for the petitioner-department that there is an error apparent on the face of the order inasmuch as while holding that in order to get exemption under section 9b (2) of the Rajasthan Sales Tax Act, 1954, the burden has been cast upon the principal to satisfy the assessing authority that the tax had been paid by his commission agent, it has also been observed that there is a duty cast on the assessing authority and the appellate authority under section 24 to exercise powers of enforcing the attendance of any person and examining him on oath or affirmation : compelling the production of documents and issuing commission for examination of witnesses and the assessing authority or the appellate authority can very well exercise those powers in order to arrive at a conclusion whether the contention of the assessee that the tax had been paid by his commission agent in respect of the sales of goods, which had been transferred to the commission agent and even if the assessing authority had not fully been satisfied in this respect on the basis of the documents filed by the assessee, they could have further looked into the record of the assessment of the commission agent in order to find out whether as a matter of fact, the commission agent had collected and paid the tax on the sales of the goods, which were transferred to him by his principal and which he had himself sold. According to the learned counsel, the latter observation is not in conformity with the earlier observation where the burden has been found to lie on the assessee. He further contends that in view of this observation, the assessees have started pressing upon the assessing authorities to exercise powers under section 24 of the Rajasthan Sales Tax Act. I have given my careful consideration to this contention and in my opinion, there is no inconsistency or incongruity in the observations made above. The burden does lie on the assessee to show that the tax has been paid by his agent on the goods transferred to him. At the same time, it has also been observed that the assessing authority or the appellate authority may also exercise its powers under section 24 of the Act to arrive at the truth, but it has not been said that the assessing authority or the appellate authority is always bound to adhere to this procedure. It is only in cases in which the assessing authority or the appellate authority finds it necessary to do so, they can do so, but they cannot be compelled by the assessee to exercise those powers in all cases. Whenever the assessing authority or the appellate authority wants to resort to this procedure, it can always ask for such particulars from the assessor as may enable it to call a witness or to get document produced. Thus, the order does not suffer from any error apparent on the face and, therefore, with the aforesaid observations, the application for review is disposed of. Review application disposed of accordingly. .;