9911796707
TMI Blog1964 (4) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals on a consideration of the materials on record. In the reference order, the learned Tribunal has given a clear statement of facts. The material facts are that the petitioner supplied rubbles for construction of spurs at Daleighai. For the aforesaid quarters he furnished no returns alleging that they involved merely payments of labour charges and that he had no title to the rubbles. His contention was accepted in the first instance and there was no assessment of the sale price paid for the rubbles on the footing that it merely represented the labour charges. On investigation by the Intelligence Circle, the Sales Tax Officer reopened the assessment under section 12(8) of the Orissa Sales Tax Act (hereinafter referred to as the Act). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials on record independently also of the observations of the learned Assistant Commissioner." Under section 24(1) of the Act, the Tribunal shall refer to the High Court any question of law arising out of its appellate order. It is remarkable that though at the appellate stage in the grounds of appeal and at the reference stage the petitioner's advocate raised the question that Sri Ramrao's order was contrary to the principles of natural justice, the learned Tribunal refrained from expressing any view on the question and yet he referred it as a question of law for the answer of the High Court. It is elementary that whenever a question of law is raised before the Tribunal, he must apply his mind to the question, categorically give an answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther inquiry as it thinks fit. Sri Ramarao acts within his jurisdiction in making further inquiry, but exercised his jurisdiction illegally and with material irregularity in not following the principles of natural justice and the law laid down by the Supreme Court in not communicating to the assessee the substance of the information gathered in the further inquiry and not giving the assessee opportunity of rebutting that evidence. The Tribunal has found that Sri Ramarao also did not hear any arguments of the appellant. This, by itself, is sufficient to quash his order as the principles of natural justice were violated. Apart from the principles of natural justice, under rule 51, sub-clause (1) of the Rules, if the appeal is not summarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he calling of witnesses, their examination and cross-examination and then arguments are addressed to the Tribunal. Where witnesses have been called and examined, or where arguments have been advanced, it is clear that one man cannot hear the case and another man pass judgment. The reason is that much may depend upon the view that the Tribunal takes as to the credibility of witnesses and his mind may be swayed one way or the other by the demeanour of witnesses and as a result of arguments. This is such an intangible and personal task, that it cannot be handed over to the successor. Where, however, no witnesses have been called and no arguments have been advanced, but the matter depends on written objections filed, then the successor is in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Ramarao by further inquiry came to the notice of the petitioner clearly by the judgment of Sri Ramarao. If the petitioner had appeared before the Tribunal on the date of hearing, he could legitimately urge that he should be given full opportunity for rebutting the materials used by Sri Ramarao. The petitioner disabled himself from availing that opportunity. The user of the materials introduced by Sri Ramarao which were already on record, cannot be treated as extraneous at the second appellate stage so far as the Tribunal is concerned. The Tribunal's power under section 23(3) is plenary and its amplitude is co-extensive with that of the first appellate Court. If the petitioner had appeared before the Tribunal, the Tribunal could have eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal. Mr. Misra contends that this further consideration of extraneous matters by the Tribunal itself without giving notice of that fact to the petitioner introduces a serious infirmity into the judgment of the Tribunal as a result of which the judgment is vitiated inasmuch as it is not possible to say to what extent the extraneous evidence weighed with the Tribunal in arriving at the ultimate findings in dismissing the appeals. The contention raised by Mr. Misra is not admissible as it is not a part of the questions referred to us. Even the petitioner did not file an application before this Court to ask for a supplementary statement of facts on the basis of a question so formulated. There is no such allegation in the reference application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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