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TMI Blog1974 (11) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... which were admittedly not produced by the respondents at the time of assessment, in exercise of his appellate jurisdiction and subject the impugned sales to a concessional rate of tax under section 8(1) of the Central Sales Tax Act, 1956?" It may be useful to set out at this place the material provisions upon which the arguments in the present case turn. Section 8(1) of the Central Sales Tax Act, 1956 (hereinafter referred to as "the said Act"), at the material time, ran as follows: "(1) Every dealer, who in the course of inter-State trade or commerce (a) sells to the Government any goods; or (b) sells to a registered dealer other than the Government goods of the description referred to in sub-section (3); shall be liable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment the Sales Tax Officer did not allow the respondents deduction of sales to the tune of Rs. 59,705.71 under section 8(1) of the said Act as they were not supported by the declarations in form D. It appears from the record and the judgment of the Tribunal that the Advocate for the respondents informed the Sales Tax Officer, when the assessment proceedings were going on, that the declarations obtained by the respondents regarding sales of the said amount were either misplaced or lost and he applied for time to obtain duplicate declarations from the vendees. The Sales Tax Officer took the view that as he had already given sufficient time, no further time should be granted to the respondents and he disallowed the deduction as aforesaid. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch, 1964, and the case was heard on 17th July, 1964, and the assessment order was passed on 22nd July, 1964. The Tribunal has further referred to the correspondence produced before it showing that the respondents had commenced correspondence to obtain the duplicates of form D declarations from 10th April, 1964. On these facts the Tribunal has found that the respondents could not produce the declarations before the Sales Tax Officer for reasons beyond their control and, that being so, the Assistant Commissioner ought to have considered the duplicates, which were produced before him, and in refusing to do so, he had failed to exercise the discretion vested in him in that behalf. Although there is no express finding by the Tribunal that in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity to produce the necessary declarations, and actually produced some declarations before the appellate authority, who received those declarations and gave the petitioner the benefit of reduced rate to the limit of the transactions covered by the said declarations. Subsequently, the Commissioner acting in exercise of his suo motu power of revision under section 21 of the Mysore Sales Tax Act, 1957, set aside the order of the appellate authority on the ground that it was illegal and restored that of the original assessing authority. The petitioner thereupon filed a petition under article 226 of the Constitution in the High Court of Mysore. It was held, inter alia, that the appellate authority has the power as well as the duty of correcting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en proceed to dispose of the assessment. If so, we see no reason why the appellate authority, instead of taking up the time of the department, should not have proceeded to dispose of the matter itself on the basis of the forms produced before it. That is exactly what the appellate authority has done." We are in respectful agreement with the observations of the Mysore High Court which we have set out above. In the case before us too, it is not disputed by the learned counsel for the applicant that if the Assistant Commissioner had come to the conclusion that the Sales Tax Officer had made an error in not granting further time to the respondents to produce the declarations, he could have set aside the assessment order passed by the Sales Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient time to an assessee to file such forms, in case he has not been able to procure them, the assessee would be entitled to seek redress from an appellate authority and the appellate authority would be within its jurisdiction to grant him the necessary relief. The manner in which the appellate authority grants the relief would depend upon his discretion. He may set aside the assessment and remand the case to the Sales Tax Officer for fresh assessment with a direction to entertain the C forms which the assessee had not been able to file at the time of the original assessment or he may himself entertain the C forms and allow the assessee the necessary relief. Strong reliance was placed by Mr. Sukhthankar on the decision of a Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
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