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TMI Blog1976 (4) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... . 295. ?" 2. To appreciate the questions certain facts have to be stated. The assessment proceedings related to the year 1969-70 under the Central Sales Tax Act, 1956. The assessing authority determined the taxable turnover at Rs. 9,07,107.16, of which for a turnover of Rs. 25,586.36 the assessee did not produce the C form declarations though time was given for producing the same. The relevant portion of the order of the Sales Tax Officer on this matter reads thus: "The assessee was given time till 31st January, 1971, to produce the C forms but he has failed to produce the C forms in respect of the above bills. The assessment is therefore completed as below: Taxable turnover determined Rs. 9,07,107.16 Turnover Tax Taxable at 10 per cent Rs. 25,586.36 Rs. 2,558.64 Taxable at 3 per cent Rs. 8,81,520.80 Rs. 26,445.63 Rs. 9,07,107.16 Rs. 29,004.27 Tax paid Rs. 26,858.27 Balance Rs. 2,146.00 A demand notice is issued for the balance." The time asked for by the assessee to produce the C form declarations was three weeks from 15th January, 1971, to which date the hearing was previously posted. Against the order of the Sales Tax Officer, the assessee filed an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to the assessee to produce the C forms and claim for reduction in the tax payment. The question for consideration is whether the Tribunal was justified in holding that the assessee is to be given an opportunity to produce the C forms. Incidentally, a question arises whether the Appellate Tribunal has got jurisdiction to direct the assessing authority to accept the C forms after the final assessment or to condone the delay in filing the C forms. We will proceed to consider these aspects hereunder. 3.. The learned counsel for the revenue relied on the decision of this court reported in Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Abdul Wasigh and Bros.(1), and contended that the Tribunal had no jurisdiction in the light of its finding that there was nothing wrong with the mode in which the assessing officer finalised the assessment and the further finding that the grievance of the assessee that he was not given sufficient time to obtain the C forms from different parties is without any substance to direct the assessing authority to accept the C forms filed after the final assessment and/or to condone the delay in filing the C forms. It is not disputed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aints the assessment. Obviously, the Appellate Assistant Commissioner was right in not allowing the appeal, and we are afraid in these circumstances that the Tribunal's order is not correct. The Tribunal has erred in allowing the forms to be received, and we, accordingly, allow the revision petition, vacate the order of the Tribunal, and the appeal before it stands dismissed with costs." These two decisions were followed by this court in Palaniappa Match Works v. State of Kerala [1962] 13 S.T.C. 904. In the latter case, the declaration forms produced were not in conformity with the proviso to sub-rule (1) of rule 11 of the Central Sales Tax (Kerala) Rules, 1957. No objection was raised by the Sales Tax Officer at the time those returns were filed. But before making the assessment order the defect was pointed out by the Sales Tax Officer and the assessee urged that the forms were in order. In appeal the assessee specifically requested the Appellate Assistant Commissioner to grant him 15 days time to produce new declaration forms in accordance with the proviso to that rule. This was rejected. The same request was repeated before the Sales Tax Appellate Tribunal and the Tribunal obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forms before the appellate authority and contended that the delay in the production of the C forms may be excused. The reason for the delay was sought to be explained by the assessee by stating that the assessing authority was convinced that there were good reasons for the delay and actually allowed time to produce the C forms till 31st August, 1962, and so some more time should have been allowed. This contention of the assessee was rejected. On further appeal before the Tribunal, the question was considered whether the C forms produced for the first time before the appellate authority or the second appellate authority can be accepted by those authorities. The Tribunal took the view that in all cases the C forms should be produced before the assessing authority and, consequently, dismissed the appeal. After noticing that the Full Bench in Abraham v. Sales Tax Officer[1964] 15 S.T.C. 110 (F.B) . had left open the question whether the appellate authorities have power to condone delay in cases where sufficient cause is shown, held that the appellate authority's power is coeval with that of the assessing authority and that if, in a given case, the assessing authority had not granted s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receiving the C forms or directing the C forms to be received by the assessing authority. In the latter case, even if there is no procedural error in the assessment by the assessing authority, the appellate authority or the Tribunal is convinced that the assessee's failure to produce the C forms was beyond his control and without negligence and then proceed to exercise the power to receive the C forms or direct the C forms to be received by the assessing authority. A reference to regulation 48(1) of the Kerala Sales Tax Appellate Tribunal Regulations, 1966, is relevant in this connection. Clause (1) of that regulation is in the following terms: "48. Fresh evidence in appeal.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Tribunal, but if, (a) the authority, from whose order the appeal is preferred, had refused to admit evidence which ought to have been admitted; (b) the party seeking to adduce additional evidence satisfies the Tribunal that such evidence, notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at or before the time the order under appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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