COMMISSIONER OF SALES TAX ORISSA Vs. AUROBINDO AUTO SERVICE

JUDGEMENT

(1.) THE points of law involved in these three applications are the same and hence they are dealt with in one judgment.

(2.) UNDER section 24(2) of the Orissa Sales Tax Act, 1947, this Court directed the Member, Sales Tax Tribunal, to refer the following two questions of law :-

(3.) THE opposite party appealed before the Assistant Commissioner but the appeal was dismissed summarily under rule 49 of the Sales Tax Rules for failure to remove defects within a reasonable time. On second appeal the learned Member, Sales Tax Tribunal, dealt with the case at great length both on facts and on law. The first question referred to this Court relates to the right of the Tribunal to enter into the merits of the assessment while sitting in judgment over the order of the first appellate authority (viz., the Assistant Commissioner) rejecting the appeal summarily. This question is concluded by a judgment of the Supreme Court reported in Mela Ram and Sons v. Commissioner of Income-tax, Punjab ([1956] 29 I.T.R. 607; A.I.R. 1956 S.C. 367), which has been followed in Commissioner of Sales Tax, Orissa v. Ramkaran Agarwalla ([1962] 13 S.T.C. 407; I.L.R. (1961) Cut. 585). There it was held that even a summary dismissal of a first appeal would amount to an appeal within the meaning of sub-section (2) of section 23 of the Orissa Tax Act and a second appeal before the Tribunal would lie. Once a second appeal lies before the Tribunal, that authority has full powers to enter into facts and law as authorised by clause (c) of sub-section (3) of section 23 of the Orissa Sales Tax Act. The first question is therefore answered in the affirmative.