Bijaya and Co. vs The State of Orissa

H.L. Agrawal, C.J. and S.C. Mohapatra, J.—The Sales Tax Tribunal, Orissa, has referred the following question of law for opinion of this Court in these two cases :

Whether the second appeals lie on merit under the provisions of the Orissa Sales Tax Act when the connected first appeals were summarily rejected under Rule 49 of the Orissa Sales Tax Rules, 1947 ?

The question referred is itself so pertinent that no facts need be stated. No further discussion is also required in view of the fact that the question has already been authoritatively answered by a Bench of this Court reported in [1963] 14 STC 46 [Commissioner of Sales Tax, Orissa v. Aurobindo Auto Service) following the decision of the Supreme Court reported in Mela Ram and Sons Vs. The Commissioner of Income Tax Punjab, , holding that even summary dismissal of first appeal would amount to dismissal of an appeal within the meaning of Section 23(2) of the Orissa Sales 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 the facts and law as authorised by Section 23. Since the Tribunal did not proceed to consider the appeals on their merits, we direct the Tribunal to dispose of the petitioner''s appeals on their merits and in accordance with law. The reference in both the S. J. Cs. is answered in favour of the assessee-petitioner and against the department. No costs.