GSTR No.23 of 1998 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH GSTR No.23 of 1998 Date of Order: 29.10.2009 M/s Rameshwar Dass ...Petitioner Versus Sales Tax Tribunal, Haryana and others ....Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. J.P. Sharma, Advocate for the petitioner. Mr. Sanjeev Kaushik, Addl.A.G, Haryana. 1. To be referred to the Reporter or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR,J This is a reference made to this Court by the Haryana Sales Tax Tribunal (for brevity “the Tribunal”) on the direction issued by a Division Bench of this Court in STC No.30 of 1989 vide order dated 25.9.1996 under Section 42(2) of the Haryana General Sales Tax Act, 1973 (for brevity “Haryana GST Act”). Accordingly, following question of law has been referred for the opinion of this Court: “Whether on the facts and circumstances of the case, there is any legal evidence to fix the higher rates of dal and dal gram at Rs.220/- and Rs.275/- per quintal than the rates claimed by the assessee which were based on the certificate issued by the Market GSTR No.23 of 1998 #2# Committee, Tohana?” The facts are not in dispute. Original assessment of the petitioner-firm was finalised on 20.3.1981. Thereafter, some information from the record of Jind and Jamalpur Railway Station was collected and assessment was re-opened under Section 31 of the Haryana GST Act for re- assessment and it was then finalised on 27.8.1982. The petitioner-assessee preferred an appeal, which was accepted and re-assessment order was set aside. The case was remanded back to the Assessing Authority for re- assessment after examining the material, which was collected for assessment purposes. The Assessing Authority again framed the assessment by creating a demand of Rs.34,463/- under the Central Sales Tax Act, 1956 (for brevity “CST Act”). The Assessing Authority also initiated separate proceedings under Section 48 of the Haryana GST Act read with Section 9 (2) of CST Act for imposition of penalty and also for levying interest under Section 29 of the Haryana GST Act. Assessee filed appeal before the Joint Excise and Taxation Commissioner(Appeal), which was rejected. Another appeal was filed before the Tribunal, which affirmed the order passed by the Joint Excise and Taxation Commissioner. Before the Tribunal, on behalf of the assessee, two grounds were urged. Firstly, it was argued that the goods were purchased from Delhi and sent outside the State on consignment basis and, therefore, no tax was leviable. Secondly, it was submitted that the assessee had fixed the rates of gram and gram dall from Rs.155/- to Rs.160/- per quintal and produced a Certificate of the Market Committee, Tohana in support of its claim. The argument on behalf of the assessee was that the rate was calculated at Rs.220/- to Rs.275/- by the Assessing Authority without indicating any material constituting the basis GSTR No.23 of 1998 #3# for such higher rate. It was, thus, submitted that without there being any legal evidence on record, such higher rates could not have been made the basis for calculation of the price of gram and gram dall. The assessee filed an application under Section 42(1) of the Haryana GST Act before the Tribunal with a prayer to refer a number of questions of law claiming that those questions had emerged out of the order dated 14.12.1988 of the Tribunal to the High Court. However, the Tribunal declined the application with the observation that the questions claimed by the assessee were merely questions of facts and no question of law had emerged. Against that order of the Tribunal, the assessee filed an application before this Court under Section 42(2) of the Haryana GST Act and this Court has accordingly directed the Tribunal to state the case and returned the aforesaid question of law for adjudication. Sh. J.P. Sharma, learned counsel for the petitioner has argued that the Certificate issued by the Market Committee, Tohana is an authentic document, which had given the then prevailing rates for gram and gram dall from Rs.155/- to Rs.160/- per quintal. According to the learned counsel, such a document is a legal evidence and has to be regarded as public document within the meaning of Section 74 of the Evidence Act, 1872 (for brevity “Evidence Act”) as it forms the record of the acts of an official body, which has been established under Section 11 of Punjab Agricultural Produce Markets Act, 1961 (for brevity “1961 Act”). He has further submitted that there is no evidence on record to the contrary either discussed by the Assessing Authority or the First Appellate Authority or the Tribunal, which may constitute legal basis for the purposes of calculating the rate of assessment of penalty and interest. Referring to the observations GSTR No.23 of 1998 #4# made by the Tribunal in its order dated 14.12.1988, learned counsel has submitted that it merely refers to the record of the Sales Tax Department and proceeds on conjectures and surmises by assuming the prevailing price of different commodities. According to the learned counsel, the aforesaid record has neither been produced nor confronted to the petitioner at any state of the proceedings. Shri Sanjeev Kaushik, learned Additional Advocate General, Haryana on the other hand has argued that once the Tribunal has referred to the record, it must be presumed that the rates of Rs.220/- to Rs.275/- in respect of gram and gram dall must be correct and authenticated. According to the learned state counsel, these rates cannot be controverted unless the petitioner had asked for the production of the same record to substantiate his argument. Shri Kaushik then submitted that even if the rates disclosed by the Market Committee from Rs.155/- to Rs.160/- are believed, it would still be subjected to incidental charges like dhami, dalali, market fee, handling charges etc and, therefore, the rates of Rs.155/- to Rs.160/- cannot be regarded as authentic. Having heard the learned counsel for the parties, we are of the view that the only legal evidence on record is the Certificate of the Market Committee, Tohana, which discloses the rates in respect of gram and gram dall from Rs.155/- to Rs.160/-. The aforesaid Certificate has to be regarded as a public document within the meaning of Section 74 of the Evidence Act. Section 74 reads thus: “74. Public documents- The following documents are public documents:- (1) Documents forming the acts, or records of the acts- (i) of the sovereign authority, (ii) of official bodies and tribunals, and GSTR No.23 of 1998 #5# (iii) of public officers, legislative, judicial and executive,[of any part of India or of the Commonwealth], or of a foreign country; (2) Public records kept [in any State] of private documents.” A perusal of the aforesaid provisions shows that a document forming a record of the acts of official body has to be regarded as a public document. It is evident that the 'Market Committee' would be covered by the expression 'official body' used in Section 76 as market committees are constituted under Section 11 of the 1961 Act. It is further clarified by Section 76 of the Evidence Act that certified copy of the public document can be obtained and has to be issued by making use of the seal. Then such copies have to be considered as certified copies. There is further provision made by Section 79 of the Evidence Act, which raises a presumption with regard to genuineness of a certified copy of the public document. The relevant portion of Section 79 of Evidence Act is reproduced hereunder for facility of reference, which reads thus: “79. Presumption as to genuineness of certified copies- The Court shall presume [to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer [of the Central Government or of a State Government, or by any officer [in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government]; Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper.” GSTR No.23 of 1998 #6# A perusal of the aforesaid provisions shows that the Court is under obligation to presume a certified copy to be genuine. The use of expression 'shall presume' clearly shows that such a document has to be considered as proved until and unless it is disproved. Section 4 of the Evidence Act defines the expression 'shall presume' to mean that wherever the expression is used in the Evidence Act, then the Court must presume the fact as proved unless and until, it is disproved. Accordingly, it has to be held that Certificate issued by the Market Committee, Tohana authenticating rates of gram and gram dall at Rs.155/- to Rs.160/- has to be considered as genuine. The argument of the learned state counsel that there is record of the Sales Tax Department and it is kept in the ordinary course of business showing prevailing prices of different commodities is without any substance because neither any price from that record has been ascertained nor it was confronted to the petitioner. By mere conjectural observation, it cannot be concluded that there was any legal evidence on record in support of the conclusion of the Assessing Authority or subsequent authorities that prices at Rs.220/- to Rs.275/- in respect of gram and gram dall were justified. Accordingly, reference is disposed of and question of law referred is answered in favour of the assessee-petitioner. The rates as disclosed by the Market Committee have to be regarded as authentic and assessment is required to be made on that basis. ( M.M. KUMAR ) JUDGE October 29, 2009 ( JASWANT SINGH ) manoj JUDGE