2009 (10) TMI 826 - HC - VAT and Sales Tax

Whether the impugned order passed by the second respondent is liable to be set aside on the ground that the second respondent has considered the documents which ought not to have been taken into consideration in law or not? Held that - The second respondent while contesting the correctness or otherwise of the order passed by the Appellate Assistant Commissioner has considered the documents filed by the first respondent and confirmed the order of the first appellate authority. Therefore the second respondent has exercised the power under regulation 12 and passed the order in favour of the second respondent. Hence we are of the considered view that in view of the availability of the power under regulation 12 of the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959 the contention of the learned Special Government Pleader is liable to be rejected. The law lay down by the honourable Division Bench in New Ajantha Wines case 1978 (10) TMI 135 - MADRAS HIGH COURT is applicable to the present case on hand, in which, the second respondent found it proper to consider the evidence produced by the first respondent while coming to the conclusion. Appeal dismissed.

Summary

Issues Involved:
1. Legality of the Appellate Assistant Commissioner's consideration of documents not initially presented to the assessing authority.
2. Applicability of Section 39B of the Tamil Nadu General Sales Tax Act, 1959.
3. Powers of the Tamil Nadu Sales Tax Appellate Tribunal under Regulation 12.

Detailed Analysis:

1. Legality of the Appellate Assistant Commissioner's Consideration of Documents:
The primary issue is whether the Appellate Assistant Commissioner (AAC) and the second respondent (Tribunal) erred in considering documents that were not initially presented to the assessing authority. The petitioner argued that these documents should not have been admitted as evidence during the appeal process without proper justification as required by law.

2. Applicability of Section 39B of the Tamil Nadu General Sales Tax Act, 1959:
Section 39B mandates that the AAC should not receive new evidence unless it is deemed genuine and the failure to produce it earlier was beyond the dealer's control. The court examined whether this provision was violated. The court noted that the documents in question related to transactions between the dealer and third parties, not day-to-day transactions, and were not contested as being non-genuine by the Department. Thus, Section 39B was deemed inapplicable in this context.

3. Powers of the Tamil Nadu Sales Tax Appellate Tribunal under Regulation 12:
The Tribunal has the authority under Regulation 12 to permit the production of fresh evidence if necessary for adjudication. The court emphasized that the Department did not object to the documents when they were first presented to the AAC. The Tribunal's consideration of these documents was within its powers, as it aimed to ensure justice by thoroughly examining all relevant evidence.

Conclusion:
The court dismissed the writ petition, affirming that the AAC and the Tribunal acted within their legal rights. The Tribunal's decision to consider additional documents was justified under Regulation 12, and the non-objection by the Department at the AAC level further weakened the petitioner's case. The judgment underscored the principle that justice should be perceived to be done, aligning with the precedent set in Deputy Commissioner (C.T.), Coimbatore Division, Coimbatore-2 v. New Ajantha Wines.

Final Order:
The writ petition was dismissed with no costs, upholding the orders of the AAC and the Tribunal.