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TMI Blog1982 (12) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... d be revised in exercise of powers under section 31(1) of the Act on the basis of the materials and legal evidence already on record at the time of original assessment proceedings? (2) Whether on the facts and in the circumstances of the case, the Board of Revenue was correct in law in deciding the appeal against the order passed under section 31(1) of the Act on the report of the Inspector of Taxes and other materials which were not there on record in the original assessment proceedings? (3) Whether on the facts and in the circumstances of the case, the order passed by the Board of Revenue was vitiated in law for consideration of the report of the Inspector of Taxes dated 18th December, 1972, submitted to the Superintendent of Taxes wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 1972, issued by the Superintendent on the ground that the proceedings under section 31(1) of "the Act" were entertained by the Superintendent and not by the Commissioner which the former had no jurisdiction vested in him by or under the law. Both the contentions were turned down by this Court. Thereafter, the dealer appeared before the Commissioner and upon hearing the dealer the Commissioner by his order dated 3rd December, 1973, held that the earlier assessment for the periods in question were erroneous and directed the Superintendent of Taxes to make fresh assessment in the light of the findings arrived at by the Commissioner of Taxes. The dealer preferred appeals before the Assam Board of Revenue, Gauhati, and took up vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "the dealer"; (v) that the appellate authority had before it two questions: (i) whether the dealer intended to sell and the buyer intended to purchase the containers; and (ii) whether the subject-matter of sale was only mustard oil and the containers did not form part of the bargain at all, but were used by the sellers as a convenient and cheap vehicle of transport. 4.. In this back-drop let us answer questions Nos. (2) and (3). The prime question is whether the report of the Inspector could have been used by the Board as "fresh evidence". Admittedly, the report was never taken as a material or evidence by the Commissioner and it was used for the first time by the Board. The ambit of the power to take fresh evidence can be located ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. However, the Board may, at any stage, accept any document tendered by a party or call for documents if it is of the opinion that they are necessary for deciding the appeal. However the other party must be afforded opportunity to produce rebutting evidence. It follows, therefore, that regulation 17(1) contemplates three conditions. First, the document must be produced or tendered by a party to the appeal. Secondly, the Board must be of the opinion that the document is necessary. Thirdly, the other party must be provided reasonable opportunity to produce rebutting evidence. Regulation 17(2) of the Regulations provides the procedure for tendering documents or affidavit as evidence. It provides that a party desiring to produce documents mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 17 of the Regulations. The dealer was prejudiced thereby as it did not get any opportunity to produce any rebutting evidence or could adduce any fresh evidence. Situated thus, we answer that on the facts and circumstances of the case, the order passed by the Board of Revenue was bad in law as it took into consideration the report of the Inspector of Taxes dated 18th December, 1972, without giving any opportunity to the dealer. It was violative of the principles of natural justice as well as violative of regulation 17 of the Regulations. Accordingly, we answer question No. (3) in the affirmative, namely, that the orders of the Board are bad in law on those counts. 7.. In so far as question No. (2) is concerned, our answer to the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Co. Ltd. [1967] 19 STC 84 (SC); AIR 1967 SC 602, Hyderabad Deccan Cigarette Factory v. State of Andhra Pradesh [1966] 17 STC 624 (SC), Sewlal Hazarimal v. Commissioner of Taxes, Assam 1979 Tax LR 767 and The Martand Dairy Farm v. Union of India [1975] 35 STC 629 (SC); 1975 UJ (SC) 431. We are confident that the Board of Revenue will also take into consideration the provisions of section 2(12) and 2(13) of the Assam Sales Tax Act and decide the appeals on merits. We answer question No. (1) accordingly. 9.. Let a copy of this judgment be sent to the Assam Board of Revenue under the seal of the Court and signature of the Registrar. The learned Board of Revenue shall, on receipt of the copy of the judgment, order disposal of the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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