Case: State of Orissa Vs. Babu Lal Chappolia

be taken ? Instead of a revised return it could have taken a written statement containing the new ground. Therefore, we do not consider it necessary to deal with the point whether it is competent for the appellate authority to accept a revised return or not.6. Regarding the second point it is necessary to notice the relevant statutory provisions. Section 23(2) of the Act provides :"Subject to such rules as may be made or procedure as may be prescribed, the appellate authority, in disposing of any appeal under sub-section (1), may -(a) confirm, reduce, enhance or annul the assessment or penalty, if any, or both, or(b) set aside the assessment or penalty, if any, or both and direct the assessing authority to pass a fresh order after such further enquiry as may be directed."Rule 50(2) provides :"The appellate authority may, before disposing of any appeal make such further enquiry as it thinks fit or cause further enquiry to be made by the Assistant Sales Tax Officer or the Sales Tax Officer, as the case may be."Rule 51 provides :"Notice to person likely to be adversely affected. - Before an order is passed on appeal, if such order is likely to affect any person other than the appellant adversely, such other person shall be given a reasonable opportunity of being heard."7. There is no express provision for making the Sales Tax Officer a party to the appeal or requiring the appellate authorty to issue a notice to the Sales Tax Officer. There is no such provision as exists in section 31(1) of the Indian Income-tax Act, 1922, requiring that "at the hearing of an appeal against an order of the Income-tax Officer, the Income-tax Officer shall have a right to be heard either in person or by a representative." In view of the absence of such a provision it seems to us that the appellate authority is virtually in the same position as the Sales Tax Officer and the Act and the Rules do not contemplate that a notice should be issued to the Sales Tax Officer. Before the Tribunal, which is the second appellate authority, there are two parties and rules 58 requires that a notice should be issued to the opposite party. We are, therefore, of the opinion that there is no substance in point No. 2 raised by Mr. Sastri.8. Regarding the third point we are of the opinion that it is not open to Mr. Sastri to raise this point before us. This point was not raised before the High Court and at any rate we do not see how this point is germane to the questions referred to the High Court. As we have mentioned above, the appeal was heard ex parte and it appears that the Sales Tax Tribunal allowed the appeal on the ground that the Assistant Commissioner had no authority under the law to allow a question to be raised which would conflict with the return filed by the dealer-respondent. This is how the Tribunal dealt with the question :"Coming to the question involved in the second appeals filed by the State as against the assessments for the quarters ending on 30th June, 1954, to 31st December, 1954, I have no doubt that the first appellate authority was wrong in allowing an entirely new question to be raised for the first time before him. No doubt he was as much an enquiring officer as the assessing officer. It is also permissible to him to allow a new question to be raised for the first time before him. But certainly it was not permissible for him to raise a question which would conflict with the return filed by the dealer-respondent. The return clearly shows his turnover from sales of cloth. The only claim made in these quarters was that the sales were exempted from taxation under the old rule 64 as he did not effect the sale at the first point. Before the first appellate authority the point taken up by the respondent was that he effected no sales and the sales effected were of his principal. Thus the new plea challenges the very basis of the return filed by the dealer-respondent and could not and should not have been allowed by the first appellate authority. Hence I allow the appeals filed by the State, set aside the order of the first appellate authority and restore the order passed by the assessing officer for these quarters."9. It is clear from this passage that the Sales Tax Tribunal did not go into the merits of the case at all, i.e., whether it is established that the assessee was an agent or not and if an agent, was assessable or not as a dealer.10. The next point raised is again not germane to the questions referred to the High Court. It is for the Tribunal to act in accordance with section 24(5) of the Act and to dispose of the case according to the judgment of the High Court or of this Court. Neither the High Court nor this Court can give directions to the Tribunal, while dealing with a reference, regarding the manner of disposal of a case after the receipt of the judgment on the reference.In the end Mr. Sastri contends that the answer to question No. 2 should be modified because as it stands now it may indicate to the Tribunal that the order was completely void. We think there is some reason for the apprehension of the learned counsel and we will make it clear that what the High Court and what we are saying is that the Tribunal was in error in reversing the order of the Assistant Commissioner on the ground that the Assistant Commissioner had no authority to permit an entirely new question to be raised for the first time before him, or as the Tribunal put it "that it was not permissible for him to raise a question which would conflict with the return filed by the dealer-respondent."

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. The first point does not seem to have been raised before the High Court. Further the questions referred do not raise the problem whether a revised return can be filed or not. The only point raised with respect to a revised return is whether it can be taken into consideration. If the appellate authority has the power to allow a new ground to be taken, does it matter in what manner it allows it to be taken ? Instead of a revised return it could have taken a written statement containing the new ground. Therefore, we do not consider it necessary to deal with the point whether it is competent for the appellate authority to accept a revised return or not.There is no express provision for making the Sales Tax Officer a party to the appeal or requiring the appellate authorty to issue a notice to the Sales Tax Officer. There is no such provision as exists in section 31(1) of the IndianAct, 1922, requiring that "at the hearing of an appeal against an order of thetax Officer shall have a right to be heard either in person or by a representative." In view of the absence of such a provision it seems to us that the appellate authority is virtually in the same position as the Sales Tax Officer and the Act and the Rules do not contemplate that a notice should be issued to the Sales Tax Officer. Before the Tribunal, which is the second appellate authority, there are two parties and rules 58 requires that a notice should be issued to the opposite party. We are, therefore, of the opinion that there is no substance in point No. 2 raised by Mr. Sastri.8. Regarding the third point we are of the opinion that it is not open to Mr. Sastri to raise this point before us. This point was not raised before the High Court and at any rate we do not see how this point is germane to the questions referred to the High Court.It is clear from this passage that the Sales Tax Tribunal did not go into the merits of the case at all, i.e., whether it is established that the assessee was an agent or not and if an agent, was assessable or not as a dealer.10. The next point raised is again not germane to the questions referred to the High Court. It is for the Tribunal to act in accordance with section 24(5) of the Act and to dispose of the case according to the judgment of the High Court or of this Court. Neither the High Court nor this Court can give directions to the Tribunal, while dealing with a reference, regarding the manner of disposal of a case after the receipt of the judgment on the reference.In the end Mr. Sastri contends that the answer to question No. 2 should be modified because as it stands now it may indicate to the Tribunal that the order was completely void. We think there is some reason for the apprehension of the learned counsel and we will make it clear that what the High Court and what we are saying is that the Tribunal was in error in reversing the order of the Assistant Commissioner on the ground that the Assistant Commissioner had no authority to permit an entirely new question to be raised for the first time before him, or as the Tribunal put it "that it was not permissible for him to raise a question which would conflict with the return filed by the